INTERNATIONAL UNIVERSITY OF EAST AFRICA.

LAW OF EVIDENCE COURSE WORK

LECTURES NAME

STEPHEN TUMWESIGYE

STUDENTS NAME

BRIDGET OPAPA

REGISTRATION NUMBER

QUESTION;

15/UG/419/BLAW-S

WITH THE AID OF DECIDED CASES, DISTINGUISH

BETWEEN MOTIVE AND MENSREA AS APPLIED IN THE LAW OF

EVIDENCE.

The law of evidence is a procedure for which something(including documents, testimonies and
tangible objects) that tend to prove or disprove the existence of an alleged fact is applied in the
prosecution of a case in hand.1 Evidence in itself denotes the means by which an alleged matter
of fact, the truth of which is submitted to investigation, is proved or disproved in the courts of
law.2 Motive and Mens Rea are all important aspects in law and are applied differently in the law
of evidence. Motive has been defined to mean some inner drive,feeling or impulse which causes
a person to do something or act in a certain way or willful desire that leads one to act.3It is also
said to be a willful desire that leads someone to act. This could be circumstances that lure
someone to do act upon committing a certain crime whether or not they really intended to do so.
Motive in its sense is not sufficient to hold someone accountable for a criminal offense. However
at times the prosecutors and defense lawyers try to make an issue of motive in relation to the
facts in issue of a particular case.An illustration is where a defendant denies commission of a
crime, he or she may produce evidence showing that he did not have the motive to commit the
crime and argue in contrast that absence of motive negates the proposition that he committed the
crime.
All the same, the prosecution may adduce evidence that proves that the accused had the motive
to commit the crime in question and argue that motive supports the proposition that the defendant
committed the crime.In the case of Charles Bitwire v Uganda4 where the accused was charged
with murder, defence lawyer submitted to the court that the accused did not have the motive to
commit the crime but it was clearly stated in the holding that the criminal procedure does not
consider evidence of lack of motive or even find it sufficient to convict someone of any crime.
Therefore there should be additional evidence for the evidence to be sufficient to constitute guilt
on the accused.

1 Blacks law dictionary, nineth edition at pg 635.

2 Evidence Act Cap 6, section 2.
3 Blacks law dictionary, Nineth edition Bryan A Garner, editor in chief.
4 [1987]HCB 11

The reason for this is because criminal law does not necessitate the proof for motive in an
allegation of an offense committed but rather whether the accused had the mensrea to commit the
crime.However motive is an indirect way to prove that something was done intentionally or
knowingly5and therefore courts can put into consideration facts which show or constitute a
motive or preparation for any fact in issue or relevant fact.6 In the case of Tinkamalirwa v
Uganda7, two appellants were tried and convicted for kidnapping with intent to murder.Their
appeal was based on the ground that the trial judge erred in law in taking into account the motive
of the alleged offense and treating it as mensrea. Court held that motive was irrelevant in a
criminal prosecution but can however be considered to guide court before determining judgment
on an offense in the view that no person can commit an offense without a reason. In civil law,
one notable exception to the rule that motive is generally irrelevant is the tort of malicious
prosecution. Here,the plaintiff must prove in part that the respondent was motivated by malice in
subjecting the plaintiff to a civil suit.This also applies to malicious criminal prosecution.8 It is
therefore not so different in the law of evidence because it cuts across civil and criminal law.
Mens Rea on the other hand is defined to mean the guilty mind.In other words the state of mind
that the prosecution, to secure a conviction,must prove that a defendant had when committing a
crime(criminal intent).9 According to the jurisdiction of Uganda and criminal procedure it
follows, the Constitution clearly states that every person is presumed to be innocent until proven
guilty10. This implies that much as the accused is alleged to have committed a particular offense,
he or she cannot be held criminally liable if there is no proof that he did actually intend to
commit the crime that he is alleged to have committed. In order to prove that the accused is
5 Criminal.findlaw.com accessed at 11:34am on 18/10/2016.
6 Evidence Act Cap 6. section 7
7 Tinkamalirwa v Uganda [1988-90] HCB.PG 5
8 Article by Gerald N.Hill and Kthleen T Hill, legal-dictionary.freedictionary.com. Accessed on
16/10/16 at 14:56
9 Blacks law dictionary, Nineth edition at page 1075.
10 Atricle 28 3(a) constitution of the republic of uganda 1995.

actually guilty, the prosecution must adduce evidence that shows that the accused first of all
committed the offense in question which in law is termed as the actus reus, second that the
accused actually had the guilty or rather the intention to commit the offense.Professors Andrew
Ashworth and Jeremy Horder writes and states that the essence of the principle of Mens Rea is
that criminal liability should be imposed only on persons who are sufficiently aware of what they
are doing and of consequences it may have, that they can fairly be said to have chosen the
behavior and consequences.11
William Blackstone also stresses that to constitute a crime against human laws, there must be
first a vitious will.12In the case of R v bond,13Dr Bond was charged with using some instruments
on a woman with the intent to procure an abortion. He denied the intention claiming that he was
not using the instrument to procure an abortion but the instruments were to examine the
woman.The prosecution then sought to lead evidence that the doctor had used the same
instruments on another woman occasioning an abortion.The accused was therefore held liable
due to fact that he had the intention to commit an abortion. The law will therefore hold a person
liable for a crime if evidence adduced shows that the person in fact had the intention or mensrea
to commit the offense.
The distinction between motive and mensrea was addressed in the case of R V Moloney14Where
a son shot his father after getting intoxicated and in the process of fulfilling a dare to pull the
trigger by the deceased. The accused claimed that he did not have the necessary mensrea to
commit the offense since the murder happened accidentally and therefore his motive was to
prove to his father that he could actually pull the trigger better than him..This however did not
exempt him from criminal liability but the judge held that there was actually no intent to kill and

11 Andrew Ashworth and Jeremy Hoder,principles of criminal law (oxford universty

press,2013) 155.
12 William Blackstone, commentaries on the laws of England (the legal classics
library,1765) vol iv,bk iv,ch 2,21.
13 R v bond [1969] 2 K.B 389.
14 R V Moloney,[1985] AC 905

thus his judgment was reduced to manslaughter. Also in the case of R v Inglis15 where a mother,
with the motive of saving the son from pain gave him an injection which killed him.The issue
was whether she acted out of motive to relieve him from pain or had intent to kill the son. Court
found her liable for murder on grounds of mensrea considering the fact that she tried to kill him
in the first place and now succeeded after some time. Considering her actions, she had developed
the necessary intention to commit the murder. Court also made it clear that all mercy killings are
unlawful homicides.Lord Bridge in fact illustrated in the Moloney case that a person who kills a
loved one dying from a terminal illness in order to relieve pain and suffering may well act out of
good motives. Nevertheless this does not prevent them from having the necessary intention to
kill.
It should be noted that any evidence that shows that the accused had the motive to commit a
certain Act will only be considered by counsel to strengthen his argument but will not be the
reason as to why a person is charged and convicted of a crime. Mens Rea on the other hand
which is the guilty mind will constitute a judgment for a criminal offense. The law will only
charge a person who has the intention to act the way they did and not one who simply got
motivated to act the way they did. The distinction therefore between motive and mensrea in the
law of evidence is that evidence of motive will not be sufficient to hold someone accountable for
an offense while evidence of Mens Rea or intention is sufficient to hold someone liable for an
offence.

15 R v Inglis [2011] WLR 1110