Wakilii

Kyerere Besigye Frank v Uganda (HCT-05-CR-CM-009-2004)

High Court · [2004] UGHC 74 · 2004 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to adduce additional evidence in a pending criminal appeal
Decision
Leave granted to adduce additional evidence on appeal; appeal to be heard on merits

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Holding

The High Court granted the appellant leave to adduce additional evidence of a handwriting expert at the appeal hearing. The Court found that the evidence satisfied the Elgood test: it was not available at trial (the defence had not engaged an expert despite the prosecution adducing expert evidence), it was relevant to the issues, and it was credible. The Court rejected the State's objection that the evidence was not credible, finding no incredulity in the expert's report.

Outcome

Leave granted to adduce additional evidence on appeal; appeal to be heard on merits

Facts

The applicant had been tried and convicted in a criminal matter. Prior to the hearing of his appeal, the applicant sought leave to adduce additional evidence of a handwriting expert. The State had adduced expert evidence at trial, but the defence had not engaged its own expert at that stage. The evidence related to material on questioned documents (exhibits P1, P E III and P X) other than the authenticity of signatures, which the applicant admitted. The State opposed the application on grounds that the evidence was available at trial and that the expert's report was not credible.

Issues

  1. Whether the applicant should be granted leave to adduce additional evidence of a handwriting expert at the hearing of his criminal appeal.
  2. Whether the evidence sought to be adduced satisfies the test laid down in Elgood v Regina for the admission of fresh evidence on appeal.

Orders

  • Application granted.
  • Leave granted to adduce additional evidence of a handwriting expert at the hearing of the appeal.
  • Leave granted to file an amended memorandum of appeal as a consequence of the additional evidence.
  • Hearing of appeal set for 20th September 2004.

Rules and key headnotes

Evidence — Fresh Evidence on Appeal — Test for Admission — Elgood v Regina Principles
For additional evidence to be admitted on appeal, it must satisfy four considerations: (i) the evidence must not have been available at the trial; (ii) it must be relevant to the issues; (iii) it must be credible in the sense that it is well capable of belief; (iv) the court must consider whether there might have been a reasonable doubt in the minds of the jury as to guilt if that evidence had been given together with the other evidence at the trial.
Evidence — Fresh Evidence — Availability at Trial — Failure of Defence Counsel to Engage Expert
Evidence of a handwriting expert is not available at trial within the meaning of the Elgood test where defence counsel failed to engage such an expert, even though the underlying exhibits were available and the prosecution adduced its own expert evidence. The weakness of counsel in not engaging an expert should not be visited on the applicant to his detriment.
Evidence — Fresh Evidence — Credibility — Alleged Doubts in Expert Report
An expert's report is not rendered incredible merely because it may express qualifications or caveats. The court must assess whether the evidence is well capable of belief, not whether it is conclusive or unequivocal in every particular.

Cases cited (1)

  • Elgood v Regina [1968] EA 274

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kyerere Besigye Frank v Uganda (HCT-05-CR-CM-009-2004) [2004] UGHC 74 (19 August 2004)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.