OPINION EVIDENCE

What is opinion?

Opinion is defined to mean any inference which one may draw from perceived data. It is
whatever you infer from what you see, smell, hear, feel etc and the general rule in evidence is
that a witness should confined himself/herself to what they perceive to leave the court to draw
the inferences.

It is however not always possible to separate perceived facts from opinions in some cases they
are intertwined and it would be impossible to separate the two. The court might sometimes need
the opinion of people better placed than itself to draw the inferences and it is in these situations
that he court allows the inferences.

E.A. outlines the number of incidences when the court may be called to draw the inferences
where facts and opinions are so intertwined and the court needs assistance by hearing opinions of
experts better placed that itself. In all instances where people are called to give opinion
evidence, it is a general rule that evidence be direct.

The first instances is where experts are called to give evidence, and experts are people that are
possessed of special skills in the field in which they are called to opine or testify and the basis for
admission of expert opinion is S. 48 of the Evidence Act.

R v. Silverlock (1894) 2 QB 766

The court accepted the evidence of a solicitor as expert opinion in a matter involving
handwriting because though the solicitor was not schooled in the matter, he was experienced
through keen interest in the matter.

ODINDO V. R (1969) E.A. 12

The Appellant was convicted of driving a motor vehicle under the influence of alcohol. A police
inspector testified to the effect that when the Appellant was brought to the control room of the
Traffic Headquarters he smelt of drink. The Inspector opined that this person was smelling of
drink and was incapable of coherently telling his name, he could not tell the time by the clock on
the wall and he could not stand on one foot with his hand horizontally spread. The Inspector
concluded his testimony by asserting that in his opinion the accused was completely incapable of
having control of a motor vehicle. The judge objected to this opinion saying that the policeman
should have confined his testimony to what he had observed, leaving the issue of fitness to drive
to the court or a doctor.

STEPHEN V. R [1973] EA 22

The court rejected evidence by a policeman that he had found the accused in possession of a drug
called Bhang. The court is saying that one should tell the court that you found them with a
substance that looked and smelled a certain way and leave the experts to decide what drug it
was. The court is trying to prevent lay persons from giving opinions on matters that require long
years of experience.

CHARLES NG’ANG’A V. R KAR Crim Case No. 66 of 1980

The accused was charged with the offence of causing death by dangerous driving. A policeman
testified on the point of impact to which the defence objected because the policeman was not an
expert on the matter. The trial court overruled the objection and on Appeal it was held that
unless it can be shown that a policeman has many years of experience in inspecting motor
vehicle accidents, a police witness should not give opinion evidence of such matters.

How do experts testify,

Experts are brought to court by people who intend to rely on their expertise. That party will
inform the court of their expertise. The question as to whether a person is an expert or not is a
question of fact which is determined by the court. The pointers or the things that will help the
court in coming to a conclusion are
1. Educational background; they may want to see certificates;
2. Evidence on the areas in his/her field where he/she has taken extra courses;
3. Work experience.
Mohamed Ahamed V. R [1957] E.A. 323

The Appellant had been convicted of occupying an unsafe house which in the opinion of the
district housing inspector and the superintendent of works was so unsafe as to constitute a
nuisance. The Court of Appeal held that these two persons were not qualified experts and so
their evidence was inadmissible.

In practice, if the expert has perceived of the facts from which he/she proffers his opinion or if
the facts are not disputed, such expert is asked direct questions such as was the accused insane or
was he so drunk as to be incapable of controlling a motor vehicle. If however the expert did not
perceive of the facts or if the facts are disputed he is asked hypothetical questions such as are the
facts adduced consistent with the existence of a certain state such as drunkenness or insanity?

Section 54: grounds for an expert opinion are admissible but this section does not make it
mandatory for the expert witness to give reasons.

R V. Salim s/o Sengero (1939) E.A.CA. 147

The evidence is to the effect that a court would welcome reasons for a witness’s opinion even
though it is not mandatory that this be given.

Note that it is necessary for experts to give reasons for their opinion as this helps to equip the
court with better knowledge of the matter under investigation

Onyango V. R (1969) E.A 362

Which is to the effect that it is not a universal requirement that reasons for the opinion should be
given. An expert should come to court prepare to justify his opinion by argument and
demonstration. But he need not necessarily be asked to do so. in many cases, it is sufficient if
the expert gives his opinion, the more eminent the expert the less the need for demonstration. So
the long and short of this statement is that whilst the law does not require an expert to bring in
his opinion, when he does come to court, he should be prepared to justify and demonstrate and
argue their reasons for their opinion.
HOW SHOULD COURTS TREAT EXPERT OPINION

It is opinion only and the court must still make its own conclusion and there is strong feeling that
courts should not abdicate their reasons for decision making to experts.

Kit smile Mugisha V. Uganda Crim App. No. 78 of 1976

The Court of Appeal took the view that expert opinion is only opinion and it cannot take the
place of substantive evidence. The court states that the court has to decided an issue upon such
assistance as the expert may offer but it should not abdicate its role of opinion making to the
expert called before it. It must form its own opinion on the subject matter at hand.

Hassan Sallum V. R (1964) E.A 126

This case was on the line that the court should not over-rely on experts, they can also make
mistakes. The court should not be bound by the expert opinion.
Expert basing their opinion upon facts look at the case of
R V. Kipikandimu [1946] 7 Zanzibar Law Reports 90

Where a medical expert gave evidence that certain injuries described by him were inflicted
before death. He gave no reasons for his opinion. The court held that the opinion evidence was
inadmissible as to the cause of death.

If the opinions of two experts conflict, the court has to make its own opinion by looking at the
credibility of the evidence available and the eminence of the experts. If the two conflicting
experts are equally eminent and creditworthy, then the matter is taken as not proved and the
party on whom the burden of prove lies has to dispense with it in another way.
Under S. 63(2) opinion evidence should be direct and oral unless it is expressed in a book
commonly offered for sale. In looking at the whole question of expert opinion revisit the proof
of handwriting at s. 50.

WHERE IT IS NOT POSSIBLE TO SEPEARATE FACTS FROM INFERENCES

When one talks of identity, it is not just identity of persons but also identity of things. When you
say that you identify the instrument that was used, you are just opining. Evidence of an identity
is an expression of an opinion. Courts treat opinion of identity cautiously to avoid convicting
people on mistaken identity.

Roria V. R (1967) E.A. 583

Fourteen days after a raid on a Maasai Manyatta the Appellant was identified at an identification
parade by the wife of one of the persons killed in the raid. He was identified as ‘either the
person who killed her husband or who passed close to her when entering the Manyatta’ the court
rejected this evidence noting that the danger of possible wrong identification, is greater when the
only evidence is identification by one witness and although no one could suggest that a
conviction based on such identification should never be upheld it is the duty of the court to
satisfy itself that in all cases it is safe to act on such identification.
In normal circumstances courts will require corroboration in cases of identification by night
because the courts must satisfy themselves that it is safe to act on the identification. In instances
where the only evidence is identification by one witness, the evidence is required to be
absolutely water tight to justify a conviction. In essence, courts exercise a lot of discretion when
they are faced with evidence of identification.

HOW ARE IDENTIFICATION PARADES CARRIED OUT?

The procedure for identification parade was laid out in the case of R V. Mwango s/o Manaa
(1936) 3 EACA 39
Which case was approved in the case of Simone Musoke V R 1958 EA 7
The procedure is as follows
1. The accused person is always informed that he may have a lawyer or friend present
when the parade takes place;
2. The officer in charge of the case does not carry out the identification that he may be
present
3. The witnesses do not see the accused before the parade;
4. The accused is place among at least 8 persons of as similar age, height, general
appearance and class of life as him or her as possible.
5. The accused is allowed to take any position he chooses and he is allowed to change
position after each identifying witness has left if he so wishes.
6. Witnesses should not be allowed to communicate with each other after they have
been to the parade.
7. The practice is to exclude all persons who have no business at the parade;
8. Careful notes should be taken after each witness leaves the parade and the notes
would include
(i) Did the witness identify any person and under what circumstances
9. If the witness desires to see the accused walk, hear him speak, see him with his cap
on or off, this should be done but all persons in the parade should be asked to do as the witness
has requested as a precautionary measure;
10. The witness should touch the person he/she identifies
11. At the termination of the parade or during the parade, the accused should be asked if
he is satisfied that the parade is being conducted in a fair manner and a note should be made of
his reply.
12. In introducing the witness to the parade, the witness should be told that he will see a
group of people who may or may not include the suspected person;
13. Throughout the parade, it is critical that the parties conducting the parades should act
fairly to avoid depreciation of identification as evidence. It is dangerous or wrong to suggest to
the identifying witness that the person to be identified is believed to be in the parade.

R V Bulatikwa (1941) EACA 46

The officer conducting the parade told the identifying witness ‘you know a man called Bulatikwa
whom you say killed your uncle. Come on to the veranda and see if you can find him.’ This was
held to be wrong because it was a suggestion that the person to be identified was actually in the
parade.

It is not established practice to question a witness who has made an identification at the parade as
their reason for doing so. A voluntary comment made by the witness is however admissible it
can be received in evidence as part of the identification.

Simone Musoke V. R
In this case, the Appellant was charged with another person on one count of theft of a motor
vehicle and two counts of robbery with violence. The evidence was that on the material day, the
accused person had been seen at a funeral and at a bar dressed in a helmet which was readily
identified by the prosecution witness. The evidence of identification by the bar owner was
rejected by the trial court on the grounds that no questions were put to these witness to elicit
reasons for identification. The stolen motor vehicle was found outside the bar and in it was
found amongst other things the helmet exhibited at the trial. On Appeal, the issue was whether
the evidence of identification was properly disallowed on … The Court held that it is not
established practice to question a witness who has made an identification at a parade as to his
reasons for doing so. comments voluntarily made by the witness are often received as part of the
act of identification but, answers to questions would be of less value and of doubtful
admissibility.

Second way of identifying is fingerprints.

Fingerprints are provided for at section 48. fingerprints may be taken also for purposes of
identification.

Footprints is another form of identification. This is done by a comparison of footmarks of the

shoes. They compare the soil type on the shoe and the soil mark at the scene of the crime.

R V. Maganga (1935) 2 EACA 89

The fourth way of identification is by use of Police dogs and a question has arisen as to whether
this is reliable. Look at the case of Wendo & Another V. R where it was stated that evidence of
identification by police dogs is admissible and can corroborate other identification but the dog
must qualify as an expert. One has to bring its training into court and that has to be taken into
account in weighing the value of its evidence.

It is important to distinguish between identification and recognition.

Identification refers to a situation where one is trying to remember whether the person you are
seeing is the same person you saw at the scene of crime whereas recognition refers to a situation
where one knows the person. Recognition is more reliable than identification. Look at the case
of
Reuben Taabu Anjononi & Others V. R (1980) KLR 59

Other issues of facts and identification apart from id

Health - Causes of illness and incapacity resulting from illness are matters for experts

Speed – one can say whether or not a particular car is being driven at a fast speed. A the practice
however is not to convict on the evidence of single witnesses. This is provided for at Section
43(3) Traffic Offences Act. We are talking of identification

Age – witnesses often testify as to their own age but this is a fact upon which such persons
cannot have first hand knowledge. Age can only be proved by the testimony of a witness other
than the person in question who was present at the birth. When you testify about your age, you
are giving an opinion. Age is a prime factor in certain cases e.g. if you want to identify
indictment for defilement, age is a factor.

Intoxication – the evidence is based upon observation which one can give without any scientific
tests being carried out. (Odindo V. R) what kind of opinions will be admissible?

Cases where opinions are so likely to be correct that the court deems these opinions as
convenient and time saving to admit the opinions:

Opinions as to handwriting of a person by a person acquainted with that person’s handwriting

will be admitted as an opinion that is so likely to be corrected Section 50 (1)

Section 51(1) – Opinion as to the existence of a general rite or custom by persons likely to know
of it. If for example we wanted opinion on customary law, who would be likely to know of
customary law it would be the people who are versed in customary law. It is important to look at
who are the repositories of the customary general rites and practices

Section 52- Opinion as to usages, tenets, constitution and government of any association body or
organisation given by persons having special means of knowledge thereon.
Section 53 - Opinions as to the relationship of one person to another expressed by conduct or
evidence of persons who are best placed to know it. For instance if the question is to whether X
and Y are married, the fact that they were usually received and treated by their friends as man
and wife is relevant and admissible opinion.