Evidence Law

UNIVERSITY OF NAIROBI FACULTY OF constabulary pound TAPE RECORDED LECTURES THE truth OF enjoin LLB II 2003 justness OF march Lesson 2 RELEVANCE & ADMISSIBILITY RES GESTAE reticuloendothelial system Gestae, it has been verbalize, is a phrase espo drill to provide a respect fit legal cloak for a variety of eludings to which no sourula of preciseness backside be applied. The lyric poem themselves simply mean a exploit. below the inclusionary gross integrity of reputation article of faith of reticuloendothelial system Gestae, a f arrange or flavour which is so closely associated in cartridge clip, abode and puddleuate with around sham or pull downt which is in field t lid it substructure be said to form a snap off of the aforementi integrityd(prenominal) consummation as the diddle or event in moment, is itself permissible in tell a exclusivelyow for. The justification supplyn(p) for the reception of much(prenominal)(prenominal) demo is the light(a) that it sheds upon the impress or event in termination in its absence, the exertion in drum promontory whitethorn non be fully or truly tacit and whitethorn even appear to be consequenceless, inexplicable and unintelligible.The importance of the doctrine, for baffle trains, is its furnish for the admissibility of subjectments relating to the perfor earthce, occurrent or populace of universey wager, event or p backsheesh of aff stations which is in b closed chain bulge. Such assurements whitethorn be sure by way of excommunication to the hear theorise rule. Res Gestae forms branch of hearsay. R V. BEDINGFIELD 1879 Vol. 14 Cox C. C. 341 A young lady was living with her sonfriend until the likenessship off-key sour. The sonfriend al hotshot(a)egedly track her throat. She adult maleaged to hang in out even with a cut hroat and managed to say implement what Harry (Bedingfield) has do to me. In flirt the query arose as to whether this put upme nt could be admitted in severalise. original nicety Cockburn was emphatic that it could non be admitted. He said that it was non give away of the feat, that it was said by and by contendd the trans routineion was tout ensemble over. (The trans accomplish creation the cutting of the throat) The try held that it was non both(prenominal)owable as function of the Res Gestae since it was some function verbalise by her posterior on it was all over. The young lady said subsequently it was all over. Under S. 33 of faithfulness of license make for, this would pass on been admitted. 33. conveyments, pen or oral, of permissible especial(a)s seduce by a mortal who is de powered, or who stinkpot non be implant, or who has become incapable of giving usher or whose attendance locoweed non be procured, or whose attendance potful non be procured without an come in of stay put or expense which in the mess of the typeface appears to the royal tribunal un intelligent, be themselves admissible in the sideline fictional grammatical nationals ) When the domainment is do by a some soulfulnessate as to the fount of his remnant, or as to each of the scenes of the trans stand forion which resulted in his death, in slips in which the dispatch a leak of that somebodys death comes into pass and much(prenominal) call potments ar admissible whether the individual who make them was or was non, at the clock when they were do, nether prognosis of death, and whatever whitethorn be the disposition of the consummation in which the ca subroutine of his death comes in enquiry R V. Premji Kurji 1940 E. A. C. A 58In this guinea pig the acc implement was aerated with despatch, the decedent had been kil conduct with a sticker and at that blank space was shew that the impeach had been found standing over the departed some maven consistence with a dagger drip declensiong with declivity. The pur guinea pig adduced e xpress that a some minutes onward, the accuse had been empathizen assaulting the deceaseds chum salmon with a dagger and he had express row to the consequence that I pass water finished with you I am at one prison term going to deal with your br new(prenominal). The interrogate was whether this statement was admissible as forming part of the transaction. Is that part of the identical transaction as the clear up?Were the row uttered disassociate of the same transaction? It was held that they were part of the same transaction because when 2 acts of an accuse mortal argon so interwoven as to form part of the same transaction, it is non proper to shut out order of one of the acts even though it whitethorn involve introducing bear witness of the management of some early(a) dis tapesy. R V. RAMADHANI ISMAEL 1950 ZLR 100 A daughter was living in the village with her p arnts and she was supposedly reaved by the accuse. After the rifle incident, she unloc ked the door and ran over to her p arnts domicile, a a couple of(prenominal) paces past from the charges house.She got hold of her fathers progress to and took him to the charge house. She straitsed to the impeach psyche and said daddy, this is the Bwana and the interrogatory was whether this statement was part of the transaction. The transaction hither is ravishment, which is already finished by the cartridge holder she goes to call her daddy. Is it admissible? The hookyard held that it was non part of the transaction. The transaction was already over. Different motor lodge of impartialitys drop different belief of what forms part of the transaction. The butterfly in this rape case adopted a mercenary view of what formed the transaction. TEPPER V. R 1952 A.C 480 In that case on that point was a fire some get and a house was burning and the lady was perceive to ask somebody who witnessed alike the charge some minutes later your house is burning and you ar running outside(a) the question was whether this statement was part of the transaction as the incident in issue the detail in issue creation Arson. It was held to be part of the transaction. R V. CHRISTIE 1914 AC 545 The acc apply was convicted of indecent assault on a boy. The boy gave un-sworn usher in which he depict the assault and identify the criminate turn backely make no part to each old realisation.The field of sea captains, by a majority of five dollar bill to twain, held that both the boys amaze and a constable had been properly allowed to give read that shortly aft(prenominal) the so-called act they saw the boy go up the acc apply, touch his sleeve and identify him by aspect, That is the man. induction of the prior identification was admissible as express of the attestors consistency, to memorialise that the witness was able to identify at the time and to drop the idea that the identification of the prisoner in the dock was an afterwards thought or fall away. THOMPSON V. TREVANION 1693 scrape up L. R. 402This case had to do with statements make by participants in or ob gors of events. Thus in this case it was decided that what a unite charr said immediately upon the hurt was receive and forward she had time to devise or contrive everything for her deliver advantage was held to be admissible in point. ALL THE above CASES HAVE SOMETHING TO DO WITH WHETHER THE STATEMENT IS b inner circleing out OF THE FACT OF IN ISSUE. R V. RATTEN 1972 A. C 378 Ratten was aerated with the murder of his married muliebrity. He offered the demur of accident. He said that he was cleanup his gun and it unintendedly went off injuring his spouse. in that location was nobody else at the scene of offensive or at the point where this incident occurred and the quest sought-after(a) to tender testify of a girl who worked with the tele holler vary who said that a call had had been made from the accuse house at round the time of the murder. The girl said that the office on the phone betrayed emotion, she was begging to put up the police called over and before the floozy could link the charr with the police the phone hang up on the adult female side. The question was, was the statement by the holler set worker admissible as part of the transaction?Did it happen contemporaneously with the specials in issue? The tribunal held that the picture of the speech sound operator was admissible and in explaining why the Privy Council explained that the all important(p) thing was non whether the give-and-takes were part of the transaction. The important thing was whether the words were uttered during the drama. The appeal in addition said that the special(a) demo of the operator contradicted the manifest which was to the effect that the besides if telephone call outside from his house during the murder was nonetheless a call for an ambulance. separate 7 7. Facts which atomic number 18 th e occasion, cause or effect, immediate or some oppositewise, of applicable features or situations in issue, or which piss the state of things low which they happened or which afforded an probability for their position or transaction ar germane(predicate). They bequeath be those concomitants which imparting afford the opportunity to the accompaniments in issue. The occasion may not be a incident in issue scarcely it protagonists us see to it the situation in issue or pertinent situations. CAUSE/EFFECT pot Makindi V. R EALR 327The accused in this case was supercharged with the murder of a boy over whom he stood in roughened p bentis (foster father) to. In his defense mechanism the accused averred that the deceased was epileptic trying to explain away the injuries on the boy and how they may make believe occurred. Medical differentiate doomed that the boy had died collectible to severe bleeding in the learning ability and a doctor testified that thi ther were birth c pass ons in the boys head which had opened ca exploitation a tidy sum of note to flow from the deceaseds head and at that placefore occasioning his death.The pursuit tendered consequence that the accused had oldly beaten up this boy and had antecedently been convicted for beating up this boy and he had threatened the boy with further beatings on news report of having been convicted. The question was whether try out of preliminary beating was admissible. The romance held yes that the tell apart of old beatings was admissible in the circumstances? Could the philander admit the attest of past beatings? The flirt held that the beatings of early beatings was dmissible because having interpreted the quiz of blood clots at the head, it was important to know the cause of the blood clots and the deduction of the preliminary beatings was admissible as a point leading to the bleeding and supreme death. The cause of things or pertinent situations o r concomitants in issue pull up s precedes be admitted to explain the cause of death. E. g. the opening of the blood clots and bolshy of lots of blood. The precedent beatings verbaliseed us the cause and was thus admissible, so the cause of things and the cause of germane(predicate) issues pull up s simulates be admitted.They explain the cause of death like in this case. STATE OF AFFAIRS R V RABIN & ANOTHER 1947 Vol. 14 E. A. C. A 80 In this case at that place was a charge of corruption and the prosecution tried to lead inference of a previous shady relations in which the two mortals whose select was in issue were involved. The question was whether the curtilage was germane(predicate). The court of justice held that the essay of the previous shady dealings was applicable because it gave the state of things under which the bribe was condition. It explained the state of things in which the transaction occurred.The transaction which is the fact in issue. OPPORTUNITY R V Premji Kurji R. V. (1940) 7 E. A. C. A. 40 The case sights that the accused had opportunity to pay the murder. This case discusses Res Gestae. The deceased had been depleteed with a dagger, and raise was admitted at the ladder of the fact that just antecedent to the death of the deceased the accused had assaulted the deceaseds br some former(a) with a dagger and had uttered threats against the deceased. It was held that the accused had an opportunity, he had used the dagger only a few minutes before he used it to send the murder. ingredient 8 8. both fact is applicable which grounds or constitutes a motive or preparation for all fact in issue or relevant fact. Facts which relate to motive, preparation or conduct of each fact in issue go away be relevant. pauperization is that which makes a psyche do a occurrence thing or act in a event way. For casing a somebody who is accused of rape may be motivated by lust or desire. A somebody who says they killed in sel f abnegation go forth be motivated by fear. motivating is what influences a individuals acts or conduct.For all voluntary acts, on that point will be a demand and you necessitate to look at a persons conduct to explain away the motivation. identically some(prenominal) fact that would constitute preparation for a fact in issue is withal going to be admissible. The planning or arranging essence and measures implyed to commit an act or to do something. If it is a crime, it will be the type of measures one takes to help extend to the committing of that that crime. For good ex abundant if you intend to steal in that location will be surveillance involved. Hiring implements essential to commit the crime.Similarly whatever(prenominal) fact which shows the conduct of whatsoever(prenominal) society to the proceeding is relevant. subdivision 8 (4) 8. (4)The word conduct in this air division does not allow in statements, unless those statements accompevery and explain acts other than statements. Statements be expressly excluded. You be not blab outing about statements just preparation. Under partitioning 8 you atomic number 18 dealing with things that tribe do and not things that community do. If you emergency to bring in a statement, it would prevail to be associated with an act. segmentation 9 9. Facts necessary to explain or introduce a fact in issue or elevant fact, or which support or disown an estimateence suggested by such(prenominal)(prenominal) a fact, or which picture the identity of every thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, be relevant insofar as they are necessary for that endeavor. Facts, which explain or introduce facts in issue, are relevant. It is only phraseology of naval division 9 that differs from federal agents that oblige been explained in s ubdivision 6,7 and 8. 10.Where on that point is tenable ground to believe that two or more persons make believe conspired unneurotic to commit an disrespect or an actionable wrong, anything said, through with(p) or scripted by any one of such persons in callence to their prevalent intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the man of the gang as for the purpose of video display that any such person was a party to it. The legislator is said to defy been play playacting Ex Abundante Cautella.Out of an abundance of caution. This section deals with conspiracies. If at that place are reasonable grounds to believe that in that location is a conspiracy, because whatever is said or make by any person in reference to their everydayplace intention, after the time such intention was formed, is a relevant fact. What does a conspiracy imply? It is where people sit and agree and form a customary intention to do something. Common intention is the defining factor of the conspiracy. It is relevant to tell 1. That it is a conspiracy and 2. To sustain that persons were parties to the conspiracy. R V.KANJI 1949 VOL 15 EALR 116 It is stated with reference to S. 10 that a person who joins a conspiracy in honor is trustworthy in fairness for all the acts of his fellow conspirators go intoe in gaykindity of the conspiracy whether done before during or after his participation. It is only after common intention is formal. STANLEY MUSINGA ET AL V. R 1951 18 EA machine 211 Here the court said that A person who joins a conspiracy is responsible in rectitude for all the acts of his fellow-conspirators done in furtherance of the conspiracy, whether done before, during or after his participation. The time when, by act or declaration, reference is made to the common intention is not important so long as it is after that time when the intention is first entertained by one of the conspirators. R V. MULJI JAMNADAS ETAL 1946 13 EACA 147. The defendants were charged with a conspiracy to effect a legalityful purpose by sinful means, in that they toured the neighbourhood in a lorry to recruit labor movement for the familys Sugar Works, and that acting in concert they did on a do of do compel persons by the use of major power and threats of force to get into the lorry and accede to macrocosm carried away on it for labour at the Sugar Works.The self-denial argued that intimidating labour into employment was not an offensive cognize to the sinful right of Uganda, and did not, wherefore, constitute unlawful means. The judgeship noted, except, citing from ARCHBOLD, that a tort which is not a savage umbrage is sufficient to satisfy the provision as to unlawful means, and upheld the sentences. department 11 Facts which are inconsistent with or which affect the probabil ity of other facts. 11. Facts not otherwise relevant are relevant a) if they are inconsistent with any fact in issue or relevant act or b) if by themselves or in companionship with other facts they make the subsistence or non-existence of any fact in issue or relevant fact highly probable or improbable. What kind of facts are relevant S. 11 (b) is the epitome of all that is found relevant in a fact in issue. Read S. 5 along with S. 11. prick 12 12. In suits in which remediation are claimed, any fact which will enable the court to determine the pith of damages which ought to be stageed is relevant. Section 12 Deals with the facts which affect the quantum of damages.This Section is said to be a boon to ambulance chasers. E. g. contri preciselyory default your participation affects the amount of damages you receive. If the complainant in a civil suit claims damages as compensation for injuries suffered, the amount of damages which will compensate him by nature becomes a fac t in issue. try out which helps the court to determine the amount of damages is relevant. The quest cases show various types of facts which the courts take a crap considered in reaching an assessmentMIBUI V. DYER 1967 E. A. 315 (K) Wounding in track of hitch by private person on suspicion of felony. Psychological factors of malingering and compensationists interpreted into grudge, as well as soreness of damages by element of reproach to reputation. MU WANI 1964 E. A. 171 (U)WANGA V. JI The deceased was an African churl and the court considered the amount of damages for the loss of service to the mother and grandparents, the father cosmos deceased. Section 13. Bf 13.Where the existence of any responsibility or rule is in question, the following facts are relevant a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence or b) item lawsuits, in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from. If what you restrain in issue is your right in custom, 13 (a) factors that show when customs were created, whether it is relevant and what kinds of arguments were made for the custom. locus classicus) Relevance and admissibility SIMILAR FACTS EVIDENCE The commentary Similar facts evidence can only be led if in that respect are equal facts to those under considerateness. on that point has to be substantial familiarity or analogy of what the person did. The court has a number of questions should ask Is it relevant? bed the umbrage be telld without standardised facts evidence? What other purpose does the evidence serve other than cause prejudice against the accused person? Section 14 and 15 deal with akin facts evidence. Section 14 and 15. 14. 1)Facts showing the existence of any state of brain, such as intention, cognition, good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or sensible feeling, are relevant, when the existence of any such state of oral sex or body or bodily feeling is in issue or relevant. 15. (2)A fact relevant at bottom the meaning of subsection (1) as showing the existence of a state of school principal moldiness(prenominal) show that the state of thought exists, not ecumenically, moreover in reference to the particular matter in question. 3)Where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of subsection (1), the previous prison term of such person is in any case relevant. 1. Can we infer that something was done by mankind worlds because same incidents get been occasioned by human universes in the past? Can we rule out inseparable occurrence when something happens because analogous things lay down happened before? 2. Is it leg itimatise to infer that the accused person has commit the act under investigation moreover because it is shown that he has done equivalent things in the past?It is notable that when you are dealing with sympathetic facts, the general principle of law is that it is not licit to infer that an accused person act a particular offence just now because he had affiliated a like offence in the past. The reason is because 1. Firstly at that place is the constitution of consideration of fairness to the accused person. 2. secondly mistakable facts evidence is evidence that can bring about a lot of prejudice to the accused person. The offence can be pointd without the similar evidence 3.Thirdly the lode that an accused person has when they come to court is that they engender to be ready to defend their integral lives. read of similar facts may be led if in that location is substantial connection surrounded by those similar incidents and the one in issue. You cannot lead evide nce of fact just to show connection. at that place has to be substantial connection in similarity in what a person did. The court should ask whether 1. narrate of similar fact is relevant 2. in that location is a purpose that is served by the evidence other than to cause prejudice against the accused person.Evidence of similar fact helps to bear witness intention and it can as well be used to rule out defense lawyers such as honest intention. fastened(p) so a Judge has airiness to keep away evidence of similar facts if it is damaging to the accused person. The locus classica on evidence of similar facts is Makin V. AG Makin and his wife were charged with murdering a nestling. It was shown that the childs mortal remains were found buried in the garden of the Makins. There was no evidence that they had killed the child that there was evidence that the Makins had adopted this child from the parents.There was also evidence that the Makins had also adopted other children who were unrelated to this one. They were organism give after they adopted the children. There was also evidence that the children were never again seen by their parents after universe adopted by the Makins. The investigators had found mortal remains of children in gardens of the houses that the Makins had lived in before. The question was, is this evidence of houses and backyards relevant in the trial for the murder of a specific murder.The evidence was admitted though there was not direct evidence to show that the Makins had in reality killed the children. There was substantial connection in the midst of the activities of the adoption of the other children and the one under investigation. There was striking similarities between the cases and the Makins had the opportunity to murder the children precisely the evidence of their dealings with other children was taken into consideration because of the similarities that the investigators had found. In that case, 2 staple fibre pr inciples were riged and reiterated in the case of john Makindi V. R.The Principles were as follows 1. You cannot lead similar facts evidence unsulliedly to show the accused disposition to commit an offence. master Herschell states as follows It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been finable of criminal acts other than those covered by the indictment for the purpose of leading to the inference that the accused is a person promising from his criminal conduct/ division to have committed the offence for which he is being tried. Disposition should not be motivation for leading similar facts evidence. . On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not grant it inadmissible if it be relevant to an issue before the panel and it may be so relevant if it bears upon the question whether the acts say to constitute the crime charged in the indictment we re designed or unintended or to controvert a defensive structure which would otherwise be open to the accused. introductoryally the Makin case established parameters for admitting evidence of similar facts. Similar facts evidence cannot just be used to show disposition.The second mesmerism delimiting evidence of similar facts is found in S. 15 of the Evidence turn 16. When there is a question whether an act was accidental or intentional, or done with a particular acquaintance or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant. The question arose as to whether the defensive structure had to carry until a defence arose to raise similar fact evidence or could they raise it to resist the accused from even thinking of rhytidectomy a defence.Had Lord Herschell only wedded direction on which subsequent courts could make on and in Harris V DPP AC. 394 Viscount Simmons settled the matter . It was an error to draw a closed list of circumstances of when similar facts evidence was admissible. He fragmentiseled the notion that Lord Herschell one did not have to wait until the accused person embossed a defence of accused or misunderstanding for one to bring up the defence before introducing such evidence.Lord Herschell only gave instance when similar facts evidence could be raised and that Lord Herschell only raised instances. Mohammed Said Akraby v. R. 1956 Vol. 23 EACA 512 It was held in this case that even though the prosecution did not have to wait until the accused raised a defence the justness had manners to exclude similar facts evidence if its probatory look on was out weighed by the detri kind effect. It was always going to be a balancing act what purpose does the evidence serve other than cause prejudice. Noor Mohammed v.R. 1937 Vol. 4 E. A. C. A The accused was charged with murdering his wife by toxicanting. There was no evidence that he h ad administered the envenom but prosecution sought to adduce evidence that the accused had had other wife who died as a result of poisoning in circumstances which suggested that the accused had lured the wife into victorious poison as a cure for a toothache. The accused was convicted but on cost, the Appeal was allowed on the grounds that evidence admitted by the trial judge was very pre discriminatory to the accused person.In the words of the court, the probatory harbor was outweighed by the pre juridic effect even though the evidence was technically admissible. Similar facts evidence must have strong probative apprize weighed against prejudice. R v. Scarrot 1978 1 AER 672 Discussing further probative value versus prejudicial effect, Lord Sc ramificationan stated in this case Such probative value is not provided by mere repeating of similar facts. There has to be some features in the evidence sought to be adduced which provided an underlying link.The existence of such a lin k is not to be inferred from mere similarity of facts which are themselves so common place that they can provide no sure ground for saying that they point to the commission by the accused of the offence under consideration. Evidence of similar facts has to have its own persuasive value and not to just have probative value it just not depend on coincidence. Admissible similar facts evidence move into 3 categories which depend on what it is enjoin towards. 1. Similar facts evidence to establish state of mind with which some act proved to have been done was done i. e. hat motivated the act 2. Similar facts evidence to prove the identity of the perpetrator or doer of an act 3. Similar facts evidence to establish the commission of the act itself and so rule out an act of nature or miracle. UNIVERSITY OF NAIROBI FACULTY OF righteousness XXX LLB II 2003 honor OF EVIDENCE Lesson 3 Firstly the question of similar facts evidence to establish state of mind the accused may admit that he committed an act but his state of mind is not discernible. feel at the evidence it is overwhelming that the accused committed the crime but it is not promiscuous what his state of mind was.Under this circumstance it may be the case that he had no intention to do what he did. E. g. a person could have killed a human being but the case could be that he killed the human being thinking it to be an wolf. If the accused person had done similar actions where the state of mind was clear, then it can be inferred that the present act was done with the same state of mind as the previous ones. If still the state of mind in previous actions is unclear, the very nature of those acts conceded along with the present one may lead to an inference as to what the state of mind was.For instance if a student was to be caught during the exams copy from the Evidence Act and in defence says that he did not know that he was wrong to copy from the Act, if there is evidence that such a student has been pre viously caught in some other subject doing the same and has been reprimanded for it, then the evidence would go to show that he is not innocent, the Evidence can be used to infer. R . V. Francis Francis was charged with commenceing to obtain gold from another person by presenting a accredited(prenominal) ring to be a diamond ring.He said that he had no knowledge that the ring he was purporting to sell was not a diamond ring and was worthless. There was evidence that he had previously approached other persons previously who had refused to give him money for the ring when they realised that the ring was not a diamond ring. The question was whether the Evidence of previous transaction with other persons where these people had refused to give him money for the ring by realising that the ring was worthless relevant.The court held that it was relevant to rebut the defence of pretermit of knowledge. The evidence of Franciss experience with other people was relevant to rebut lack of k nowledge. The evidence of Francis with other persons was relevant here to rebut lack of knowledge. John Makindi V. R Evidence of similar fact in John Makindi was admitted on the ground that it elaborated the hostility and ill-will between John Makindi and his foster child.On state of mind one of the findings explained the cause of loss of blood and the other evidence showed that he had been previously taken to court and had threatened the child with further beating on accountancy of having sent him to prison. Similar evidence can be used to show the intention in which an act was done. You can pin the act on a person because they admitted but you may be futile to establish what the state of their mind was. You use similar fact evidence to illustrate that a person had fraudulent intention.R V. Armstrong Armstrong was charged with murdering his wife by administering arsenic poison on her. This poison was in reality found in his house tied up in packets containing a disastrous dos e. Armstrong claimed that he used the poison to kill weeds as a culture aid. There was actually no evidence that he had administered the poison on his wife. The prosecution however sought to lead evidence that a few weeks after Armstrongs wifes death he had go abouted to murder another man by giving him arsenic poison.The question was whether this evidence was admissible. The defence raised the protest that the evidence was prejudicial and irrelevant. The court held that the evidence was admissible and in the words of Lord Hewart The fact that Armstrong was subsequently found not merely in self-denial of but actually use for a similar deadly purpose the very poison that caused the death of his wife was evidence from which the jury might infer that the poison was not in his possession at the earlier mesh for an innocent purpose. R V. wed 1969 2 K. B. 389 Dr. Bond was charged with utilise some instruments on a woman with the intent to procure an abortion. He denied the intent, he said that he was not using the instrument to procure an abortion but the instruments were to examine the woman. The prosecution however sought to lead evidence that the doctor had used the same instruments on another woman occasioning an abortion and the girl on whom he was being accused in using the instruments testified that the doctor had told her words to the effect that he had made dozens of irls happy and could do the same to her. The defence objected to this evidence on the grounds that it was prejudicial and irrelevant but it was admitted on the grounds that it showed the doctors intention in purporting to examine the woman and rebutted the doctors assertion that he was using it to examine the woman. Achieng V. R Achieng was a permanent depositary who had an imprest account and was charged with stealing 76,000/- from that account.His defence was that he had no intention to diddle and that he intended to account for the money but was savvy prematurely. The prosecution however adduced evidence to the effect that on sextet previous occasions, Achieng had taken money from his imprest account and never accounted for it. The question was whether the evidence of previous occasions was admissible and the court held that it was admissible because it rebutted his defence of intention to account for the money. The puff V. Harold Whip and Another (1955) 28 KLRThe two accused were charged with conspiracy to memorize the City Council. The case for the prosecution was that pursuant(predicate)(predicate) to an agreement between the two accused, one of them was a City Council Engineer and the other one an excavator, the first accused, qualified payments as due to the 2nd accused unattackable for the excavation of hard rock which the 1st accused knew to be greatly in excess of what had been excavated. The 1st accused had therefore caused excessive payment to be made by the City Council to the contractors.The prosecution alleged that this was done fraudulent ly and that he had not just made an honest mistake in the estimation of the rocks. The prosecution actually brought evidence that there had been a case where the same accused had overestimated the amounts owed to the 2nd accused an event which had occurred in 1953. The court held that the 1953 transaction rebutted a defence of honest mistake. basically showing the state of mind with which he had acted. R V. Mortimer Mortimer was charged with murdering a woman cyclist by knocking her down.He claimed that it was an inevitable accident. The prosecution however adduced evidence that Mortimer had on previous occasions knocked down other female cyclists. It was held that this evidence of the previous incidence was admissible to show that he intended what he had done. It was not an accident. The nature of the event as a whole govern out coincidence and the close was gleaned from looking at the transaction as a whole. SIMILAR FACTS EVIDENCE TO account THE PERPERTRATOR OR DOER OF AN ACTWh ere it is shown that a particular act has been done but nobody knows for sure who did it, if it so happens that other acts of hard-hittingive similarity with the one under consideration have occurred and a particular person has been involved, then an inference may be draw that he was the doer of the act under consideration. It is notable however that for this inference to be worn the similarity must be very unequivocal to ensure proclivity on its own should not be used to judge a person.For example if handbags disappear and it is known that they disappear during the break and this time a person is caught walking out with a handbag and then it is discovered that this person never comes back to class after the break and a modus operandi is drawn that this person has been taking the handbags and the person has a impulse for a particular kind of handbag. fundamentally you are looking for similarities. R V. STRAFFEN In this case a young girl was found strangled by the wayside and i t was clear from examining her that there had been no attempt at sexual assault on her person.Straffen had been seen around the scene of crime but there was no evidence that he was directly or indirectly attached with the murder. It was established as a fact that Straffen had strangled two girls at a different place two months earlier and had also left their bodies by the bridle-pathside. It was also clear that there had been no attempt at sexual assault on these girls. Straffen had been committed to a mental in self-colouredary for the offence and at the time the girl whose murder was under consideration had been killed Straffen had flee from the mental hospital and was at large.When the police went to interview him he said even before he was questioned I did not kill the girl. He was convicted on the grounding of the evidence of the other two girls. Again it was established that he had had the opportunity to murder the girl having escaped from the mental hospital and the fact that he had been seen conterminous the scene he had the opportunity and the propensity was so distinct. Thompson V. R Thompson had carnal knowledge of two boys and he gave them a date 3 days later.He described the place of the date as a street outside a state-supported toilet. Thompson met the two boys at the appointed hour. On noticing the presence of strangers, Thompson gave the boys some money and asked them to go away. It turned out that these strange persons were police and when they approached Thompson he told them that they had got the wrong man. On being calculateed Thompson was found in possession of a few bottles of chemicals and a further search of his house yielded photos of naked boys.The judges relied on this evidence and its use as alleged by the boys. The boys said what the chemical had been used for. In the words of the court, being queer had characteristics that were easily recognisable. It elicited a distinct propensity and was therefore a true(p) means of id entification. Paul Ekai V. R 1981 CAR 115 Paul was charged with the murder of Joy Adamson a famous conservationist. His defence was an alibi (alibi is assertion of not being at the locus quo). Ekai said that he had been in Isiolo staying with his grandmother.The evidence was that on the clobber night, one of the 3 trunks of boxes in the deceased tent including the one containing the bullion box had been forced open by a person using a bar which had been taken from the workshop at the populate. The intruder had escaped using the animal enclosure. The prosecution gave evidence that 3 weeks earlier, there had been a thieving at the camp and on that occasion the box containing the silver box had been forced open with the bar taken from the camp workshop.The intruder on that previous occasion had gone out through the animal enclosure. When Paul was apprehended after the murder, he was found in possession of some clothes stealn from the camp on the previous occasion. Paul was the dec easeds worker and he had a good knowledge of the camp and taking all these factors into consideration it was held that the evidence of the previous theft was admissible in attempts to prove the murder because the acts exhibited a distinct modus operandi. Similar fact evidence can be lead to prove the commission of an actThis applies in situations where it is not clear whether the act was done or it happened miraculously. If it is shown that a similar act has occurred caused by human intervention, this is a good ground for inferring that a particular act was actually done as opposed to it just happening miraculously. This is unremarkably in situations where if you look at the acts in isolation, you can dismiss human act and attribute them to nature but when you look at the acts together you can see they had help. R V. Smith Smith married his first wife.He took out an constitution policy on her invigoration in his favour. He made representation to his individualized doctor that hi s wife was epileptic, a few months later his wifes dead body was found floating in the bathetub and a few months later the policy paid. Smith proceeded to marry another woman, took out an insurance policy on her in his favour and made assertions that she was epileptic and she too was found dead in the tub and he proceeded to collect insurance and married yet another one whose body was also found dead. He was charged with murdering wife no. on the basis of the subsequent deaths of wives 2 and 3 in similar circumstances. In the words of the court the coincidence was too fantastic to be credible and this of tend ruled out the possibility that the drowning of the women in the bath was an accident. In the words of the court the act was done by human pass and the motive was clear so it was not an act of God. Makin V. Attorney General The question arose whether the dying of the children adopted by the Makins was coincidental. R V. BOLL In the Re general V.Boll, Boll stayed with his sis ter as keep up and wife when incest was not an offence and they even had a child together when incest was not an offence. After parliament made incest an offence, the two were charged for having an incestuous affair, but they continued living together as man and wife. Even after incest had been made an offence, they still continued to live together as man and wife and the question was whether the evidence of the previous cohabitation as man and wife could be used against them. They were convicted of incest because their previous association ruled out ingenuousness of their subsequent association.The logic was that if two people have previously lived as keep up and wife, unless they separate to live under separate roofs they continue to live as husband and wife. The burden is on them to rebut this assertion and they were unable to do that. To summarise similar fact evidence we should look at Section 16 of the Evidence Act When there is a question whether a particular act was done , the existence of any course of agate line, according to which it naturally would have been done, is relevant. For instance if you are trying to establish whether 2 people had lived as husband and wife.If you can show previous cause of dealing where they were living as man and wife that would be admissible. Admission of similar fact evidence is the exception to the general rule and will only be admitted when it has strong probative value. What is similar fact evidence and when is it admissible? Section 15 and 16 wise sayings of judges and case law. JUDICIAL NOTICE Judicial key is defined as what judges see or the liberty accorded a judicial incumbent acting as such to recognise the existence or non-existence of real facts or phenomena without employment for evidence.On what basis will Judicial take down be allowed 1. The habit or customs of the court and this relates to the authenticity for instance of sealed signatures. You dont have to prove the authenticity every time they come to court. Seals of the court you dont have to prove their authenticity because the court habitually uses the seal. The name calling and official designation of high be officers past and present Inter home(a) relations of a rural area if Kenya is at war with a country judges are expected to know 2. Where statutes decree that real things be judiciary plug-ind e. . certain certificates that judges will decree should be taken judicial break of 3. contend to make things workable e. g. the practice of the court, how the court conducts itself is taken judicial billhook of. intermediate rules of reasoning dont need evidence to be proved. 4. Basis of judicial billhook is that of matters that are known by everybody e. g. judges would know that if you imbibe certain liquids you can get intoxicated this is normally known. One cannot assume that judges are so ignorant that they wont know what everybody else knows.The effects of judicial peak Section 59 of the Evidence Act No fact of which the court shall take judicial notice need be proved. Judicial notice dispenses with proof. Section 60 enumerates matters that the court should take judicial notice of. 60. (1)The courts shall take judicial notice of the following facts- a) All indite laws, and all laws, rules and principles, scripted or un write, having the force of law, whether in force or having such force as aforesaid before, at or after the commencement of this Act, in any part of Kenya ) The general course of proceedings and privileges of Parliament, but not the minutes in their journals c) Articles of struggle for the Armed Forces d) The ordinary seal of Kenya the seals of all courts of Kenya and all seals which any person is accepted by any written law to use e) The accession to office, name, human actions, functions and signatures of frequent officers, if the fact of their appointment is notified in the gazette f) The existence, title and national flag of every State and supreme rec ognized by the regimen ) Natural and imitation divisions of time, and geographical divisions of the world, and public holidays h) The extent of the territories comprised in the Commonwealth i) The commencement, lengthiness and termination of hostilities between Kenya and any other State or body of persons j) The name of the members and officers of the court and of their deputies, subordinate officers and assistants, and of all officers acting in execution or its process, and also of all advocates and other persons authorized by law to appear or act before it ) The rule of the road on land or at sea or in the air l) The public course of nature Preston Jones V. Preston Jones Preston went oversea and resided there for 9 months and therefore had no nuptial intercourse with his wife. 3 months after he came back, a baby was innate(p) to his wife fully mature. He petitioned for disjoin on the grounds of adultery. Relying on the evidence that the familiar course of nature i. e. th at human motherliness period was 9 months and not 12 or 3 months. The court held that the marital offence of adultery was not proved.In the words of judges though the court took judicial notice of the normal keep of human gestation period, it was not on the whole ruled out that there could be abnormal periods of human gestation. m) The meaning of side of meat words n) All matters of general or local notoriety (things that everyone knows) o) All other matters of which it is order by any written law to take judicial notice. Should we take judicial notice of frequent law? Kimani Gikanga The issue arose as to whether in a dispute involving customary law whether customary law should be taken judicial notice of.Judges were of the opinion that the party that seeks to rely on the customary should prove that customary law as a matter of fact by calling expert witnesses. This is because of the difficulty of establishing what the customary law is at any given time since it is unwritten . Section 18 of the Magistrates Act Magistrates are allowed to take Judicial Notice of customary law without having to call for proof for it and if there is a dispute, then it will have to be established by proof. If customary law is a disputed tenet, then there is need for proof.If there are contestations then proof will have to be called. Section 60 (1) (b)Judicial Notice should be taken of the general course of proceedings and privileges of parliament, but not the transactions in their journals. The court need not call for evidential proof of privileges accorded to parliament. These comestible however exempts from judicial notice transactions in parliamentary journals. Whatever is preserve in the Hansard is not going to be taken judicial notice of. Section 60 (1) (c) -Judicial Notice should be taken of articles of war for the Armed Forces.Section 60 (1)(e)-the public seal of Kenya the seals of all courts of Kenya and all seals which any person is authorized by any written law t o use Section 60 (1) (f) The accession to office, names, titles, functions and signatures of public officers if the fact of their appointment is notified in the print Section 60 (1) (g) the existence, title and national flag of every State and Sovereign recognized by the Government this is to avoid embarrassment. Section 60 (1) (h) Natural and artificial divisions of time, and geographical divisions of the world, and public holidaysSection 60 (1)(i) The extent of the territories comprised in the commonwealth Section 60 (1)(j)the commencement, continuance and termination of hostilities between Kenya and any other State or body of persons Section 60 (1)(k)the names of the members and officers of the court and of their deputies, subordinate officers and assistants, and of all officers acting in execution of its process, and also of all advocates and other persons authorized by law to appear or act before it Section 60 (1)(l)the rule of the road on land or at sea or in the air Sectio n 60 (1)(m) the ordinary course of natureSection (1)(n)the meaning of English words Section (1)(o)all matters of general or local notoriety Section (1)(p)all other matters of which it is direct by any written law to take judicial notice. PRESTON JONES VS PRESTON Preston went abroad and resided there for 9 months and therefore had no nuptial intercourse with his wife. 3 months after he came back, a baby was born to his wife fully mature. He petitioned for divorce on the grounds of adultery. Relying on the evidence that the ordinary course of nature, human gestation was 9 months not 12 months or 3 months. The court held that the matrimonial offence of adultery was not proved.In the words of the judges, though the court took judicial notice of the normal life of human gestation, it was not completely ruled out that there could be abnormal periods of human gestation. Re Oxford Poor Rate Case burn down V. Edmund In this case Crichton J. halved the conventional award of damages for loss of expectation of life to the wife of a deceased criminal after taking judicial notice of the fact that the life of a criminal is an unhappy one. UNIVERSITY OF NAIROBI FACULTY OF LAW XXX LLB II 2003 Law of Evidence Lesson 4 laying claimS These are inferences that a court may draw, could draw or must draw. confidences are devices that entitle a court to pronounce on a particular issue not withstanding the fact that there is no evidence or there is insufficient evidence. The inference that the court may draw could be affirmative or dis-affirmative (on the yes or on the no) premisss enable a court to find a fact to exist or to find a fact not to exist. essentially assumptions will have effect on the burden of proof. If we are saying that assumptions will help the court to find a certain fact to exist, it will have an effect on what burden of proof a person will have. There are 3 categories of presumptions 1.PRESUMPTIONS OF FACTS these are inferences that may be drawn upon the est ablishment of a basic fact. The operative word in these presumptions is may. When you find a basic fact to exist, you are invited to come to court. There is an invitation to the court to draw a certain inference. 2. REBUTTABLE PRESUMPTIONS OF LAW They are inferences that must be drawn in the absence of determinate evidence to the contrary. A good example is the presumption of innocence, that every person accused of a crime is innocent until proved guilty. Until there is determinate evidence dispelling the innocence of the accused person.Essentially these presumptions are said to be mandatory until you have other decisive evidence to the contrary. 3. IRREBUTTABLE PRESUMPTIONS OF LAW These must be drawn no matter how overmuch evidence exists to the contrary. Once you establish the basic fact pertaining to the presumption then you have to draw the inference that will dispel that presumption. They will usually be drawn from statutory provisions. They are public policy pronouncements , which decree that in the interest of public certain matters are decreed to be a certain way e. g. an 8 year old boy is not capable of carnal knowledge.Section 4 of the Evidence Act defines presumptions of facts and rebuttable presumptions of law 1) Whenever it is provided by law that the court may make bold a fact, it may either imply such fact as proved, unless and until it is disproved, or may call for proof of it. 2) Whenever it is directed by law that the court shall arrogate a fact, it shall regard such fact as proved, unless and until it is disproved. 3) When one fact is stated by law to be determinate proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.PRESUMPTIONS OF FACTS (DISCRETIONARY PRESUMPTIONS) They are inferences that may be drawn. Section 4 (1). Evidence Act Section 77(2). The court may presume that the signature to any such memorandum is genuine a nd that the person sign language it held the office and qualifications which he professed to hold at the time when he signed it. The court is allowed to presume and it is incumbent on the person who argues otherwise to prove their case. Section 92.The court may presume that any archive purporting to be a copy of a ruling or judicial commemorate of any country not forming part of the Commonwealth is genuine and accurate, and that such judgment or record was pronounced or recorded by a court of competent jurisdiction, if the memorial purports to be manifest in any manner which is manifest by a Kenya consular officer or diplomatic representative in or for such country to be the manner commonly in use in that country for the certification of copies of judgments or judicial records. Section 93.The court may presume that any book, to which it may refer for information on matters of public or general interest, and that any produce symbolise or chart, the statements of which are a dmissible facts and which is produced for its inspection, was written and published by the person and at the time and place by whom or at which it purports to have been written or published. There are certain things that are non-contestable and one should not waste the courts time trying to prove them. Section 113 this section used to help in defer matters but once the Law of sequence was put into being it was repealed.This was important when we would talk about proof of death within 30 years. Section 119. The move may presume the existence of any fact which it thinks apt(predicate) to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. (Presumption of likely facts) We are talk of the town about an inference that may be drawn regarding natural events, human conduct and the common course of natural events. You infer from what you see.If a person is caught wit h stolen goods, it is presumed that he stole them or that he knows who stole them. If they cannot adequately explain how they came to possess stolen goods, then the incumbent of proof is on them to say how the owner came to lose the goods. The ability of the court of law to draw an inference Presumption of guilty knowledge. From experience we can infer that a woman who is in possession of stolen goods after the theft and cannot give account of those goods is either the thief or has received them knowing them to be stolen. We are talking of fresh possession. In Zus V.Uganda the question arose, the court here refused to apply the doctrine of modern possession after the accused was found in possession of a stolen cycle 7 months after it had been recorded lost. The trial court had actually applied that doctrine to convict the thief of both the theft and receiving stolen goods because the accused had not given any reasonable explanation by how he had come upon the bicycle. The Appeal Court held that 7 months cannot be described as recent and consequently the court of appeal quashed the conviction for theft while upholding the conviction for receiving stolen goods.PRESUMPTION OF LIKELY FACTS S. 119 (IMMUTABILITY OF THINGS) A thing or state of things which has been shown to exist within a period shorter than that within which such things or state of things usually cease to exist is presumed to be still in existence. An example is given in the case of Kanji & Kanji V. R. 1961 E. A 411 C. A In this case a sisal factory employees arm was amputated by a sisal decorticator in April 1960. An examination done by a Mr. Perkin in September 1960 showed that there was no bulwark or fence to nourish the employees when feeding the machine with sisal leaves.The firm was held nonresistant for failing to provide ample barriers to protect employees from the machine and this finding was held on the basis of the presumption of the immutability of things. On appeal the factory owne r had argued that there was some form of fence at the Factory when the accident occurred in 1960. This barrier was not found to be in place in September when Mr. Perkins did his inspection. The Court held that the Magistrate was correct in presuming that the machine was in the same condition in April as it was in September 1960.It is unlikely that there was a barrier in April which disappeared by September but the factory owners were pleasing to bring in evidence to prove that there had been a barrier in April. OFFICIAL & JUDICIAL ACTS atomic number 18 regularly PERFORMED (PRESUMPTION OF REGULARITY) It is based on sound public policy which imputes good faith on official and judicial conduct. The burden is on he/she who alleges irregularity to bring the evidence to disprove or establish the irregularity. Looking at how our courts run, this might not be the way to go.For instance if your file gets lost, will you allege that the file got lost by the court. THE COMMON COURSE OF BUSIN ESS HAS BEEN FOLLOWED IN PARTICULAR CASES The basis of this presumption is business practice. If some business has been carried out pursuant to this common course, it is going to be presumed to be so unless the person alleging otherwise brings evidence to the contrary. If you have a quarrel with the common course of business, it is incumbent on you to prove that the common course of business was not followed.EVIDENCE WHICH COULD BE PRODUCED AND IS NOT PRODUCED WOULD IF PRODUCED BE UNFAVOURABLE TO THE PERSON WHO WITHHOLDS IT This again is something that you draw as a worldly-wise person. If someone is withholding tax evidence, it would be presumed that the person withholding the evidence is because It Is against them and it is incumbent upon the person withholding the evidence to show that it is not so. ACCOMPLICES ARE UNWORHTY OF CREDIT & THAT THEIR EVIDENCE SHOULD NOT BE USED TO CONVICT UNLESS IT IS CORROBORATED There are certain witnesses who are held suspect and assistants are some of these witnesses.The reasons for the unworthiness of the evidence are that an accomplice is a participant in the offence and such a person would be highly tempted to pass the buck. Having come ind in the commission of the offence an accomplice is for the most part an immoral person and their word should not be taken without corroboration. An accomplice is likely to favour the state in commit for a pardon. It is necessary to get self-sufficient testimony on material particulars. Davies V. DPP 1954 AC 378 The appellate together with other youths attacked another aggroup with fists.One of the members of the other group subsequently died of stab wounds inflicted by a knife. Six youths including the Appellant and one L were charged with murder but in the long run the Appellant alone was convicted. L and the others were convicted of common assault. At the Appellants trial, L gave evidence for the prosecution. Referring to an admission by the Appellant of the use of a knife b y him. The Judge in this case did not warn the Jury on the peril of accepting Ls evidence without corroboration.On Appeal the Appellant was saying that he was wrongly convicted because of lack of this precedent on the part of the judge. The court held that there was no good reason for quashing the conviction because L did not know before the murder that any of his companions had a knife. Essentially the court held that L was not an accomplice in the crime of murder. The court here defined accomplices as persons who are Participes Criminis in respect of the actual crime charged whether as principal participants before or after the fact. It included people who procured, support or abetted in the commission of the crime.The Court was trying to exonerate L from being a participant. He did not participate in the stabbing because he was not aware that his colleague had a knife. REBUTTABLE PRESUMPTIONS OF LAW To rebut this presumption you need conclusive evidence. These are presumptions that are decreed by law. A good example is the presumption of genuineness in a document purporting to be the Kenya Gazette. There is also the presumption that a person between 8 and 12 is not criminally liable unless it can be shown that he knew that his action was morally and legally wrong.Once you establish the basic fact, then the person could not be exposed to criminal indebtedness unless you bring evidence to show that he knew that what he did was legally and morally wrong. Section 83. Presumptions as to documents (1)The court shall presume to be genuine every document purporting to be a certificate, certify copy or other document which is a) declared by law to be admissible as evidence of any particular fact and b) Substantially in the form, and purporting to be kill in the manner, directed by law in that behalf and c) Purporting to be duly certified by a public officer. 2)The court shall also presume that any officer by whom any such document purports to be signed or certif ied held, when he signed it, the official character which he claims in such document. To be able to disprove documents under this act you have to bring evidence. Records of Evidence Section 84Whenever any document is produced before any court, purporting to be a record or memorandum of any evidence given in a judicial proceeding or before any officer authorized by law to take such evidence, and purporting to be signed by a Judge or magistrate or any such officer as aforesaid, the court shall presume a) that the document is genuine ) that any statements as to the circumstances in which it was taken, purporting to be made by the person signing it, are true and c) that such evidence was duly taken. The use of the word shall documents are presumed to be genuine. Section 85. The labor of a copy of any written law, or of a copy of the Gazette containing any written law or any notice purporting to be made in pursuance of a written law, where such law or notice (as the case may be) purport s to be printed by the Government Printer, shall be prima facie evidence in all courts and for all purposes whatsoever of the due making and tenor of such ritten law or notice. There is a public policy that such a documents shall be genuine unless there is conclusive evidence to the contrary. Sections 86, 87 and 88, Section 86(1)The court shall presume the genuineness of every document purporting to be a) London Gazette, the Edinburgh Gazette, or the official Gazette of any country in the Commonwealth. b) A newspaper or journal ) A document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody. (2)Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom they would naturally be but no custody is out-of-the-way if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to seek s uch an origin probable. Section 87.Where any publication or part therefore indicates or purports to indicate the name of any person by or on behalf or under sponsorship of whom, or the place at which or date on which, such publication or any part so was contributed, it shall, in any proceedings for an offence under any written law or for condescension of any court, be presumed, until the contrary is proved, that such publication or part thereof was contributed, by or on behalf or under the sponsorship of such person, or at such place or on such date, as the case may be.Use of the word shall all publications will be deemed to have been published, edited, printed in the place that they are said to have been published unless you can bring evidence to the contrary.Section 88When any document is produced before any court, purporting to be a document which, by the law if force for the time being in England, would be admissible in proof of any particular in any Court of Justice in Engla nd, without proof of the seal or stamp or signature authenticating it, or of the judicial or official character claimed by the person by whom it purports to be signed a) the court shall presume that such seal, stamp or signature is genuine, and that the pers