PRESUMPTIONS. (TUSIIME FLORENCE.

Presumptions are inferences which are drawn by the court with respect to the existence of certain
facts. According to R V Stoddart, a presumption refers to a logical inference made from
established facts and available in civil or criminal proceedings. In Uganda, presumptions are
governed by the Evidence Act Cap 6 pursuant to section 3 which states “that whenever its
provided by the Act that court may presume a fact, it may either regard that as proved, unless its
proved or may call for proof of it. It should be noted that when certain facts are presumed to be
in existence the party in whose favor, they are presumed to exist need not discharge the burden
of proof with respect of it. This is an exception to the general rule that the party which alleges the
existence of certain facts has the initial burden of proof but presumptions do away with this
requirement. Certain facts can give rise to inferences which justify legal rules that in such
circumstances a conclusion maybe drawn, for example if after an operation a swab is found to
have been left in the patient’s body, it seems reasonable enough to infer in the absence of
explanation by the surgeon that the accident arose through his negligence. Negligence is
presumed because if a surgeon uses proper care, such an accident doesn’t in the ordinary course
of things occur.

There are three categories of presumptions and that is rebuttable and irrebuttable or conclusive
presumptions of law and presumptions of fact. Presumption of facts are discretionary inferences
that maybe drawn upon the establishment of a basic fact. A fact maybe presumed upon proof of a
basic fact and in the absence of sufficient evidence to the contrary. They are also refered to as
provisional presumptions to indicate that the party against whom they operate bears a provisional
or tactical burden in relation to the presumed fact. It should also be noted that presumptions of
facts don’t have effect of placing evidential or legal burden on that party and thus presumptions
of facts can be said to amount to circumstantial evidence. Some of the examples of presumption
of facts are; presumption of intention, guilty knowledge, continuance of life etc. In the case of Re
W, there was a presumption of fact drawn to the effect that a baby’interests are served by being
with the mother. The presumption of guilty knowledge is mostly witnessed through the doctrine
of recent possession, a person in possession of stolen goods after the theft and can’t account for
the goods is presumed to be a thief or has received them knowing them to be stolen. A case in
point is that of Zus V Uganda, the High court refused to apply the doctrine of recent possession
after the accused was found in possession of a stolen bicycle after seven months after it had been
recorded lost. The trial court actually applied the doctrine to convict the thief of both theft and
receiving stolen goods because the accused had not given reasonable explanation by how he had
come upon the bicycle.

Rebuttable presumptions exist as per the general rule of Uganda’s criminal justice system that is
backed up by Article 28(3) of the 1995 Constitution of the Republic of Uganda that “any person
is presumed innocent until proved guilty. A rebuttable presumption of law applies on the proof or
admission of fact (basic fact) and in the absence of further evidence, another fact referred to as a
(presumed fact) must be presumed. The party relying on the presumption bears the burden of
establishing the basic fact and once he has adduced sufficient evidence on that fact, his adversary
bears the legal burden of disproving the presumed fact. The standard of proof to be met by the
party seeking to rebut the presumed fact is determined by the substantive law in relation to the
presumption in question, for instance there’s a presumption of law that a child admitted to have
been born during lawful wedlock ( basic fact) is legitimate( presumed fact) and the party seeking
to rebut the presumed fact by evidence of say the husband’s impotence, is in civil proceedings
required to meet the ordinary civil standard of proof on a balance of probabilities.There are
various examples of rebuttable presumptions as discussed below;

PRESUMPTION OF THE INNOCENCE.

This is another type of rebuttable presumption which is stipulated under Article 28(3) which
provides that every person who is charged with a criminal offence shall be presumed to be
innocent until proven guilty or until that person has pleaded guilty 1.This basically means that in
situations where one had been in a criminal case,the courts will not convict him of the case
because he is still presumed to be innocent of the case unless other evidence is brought against
him to prove otherwise.

As per the case of Woolington v DPP" where the accused was charged of killing the wife after
she run away from him to the mother",the judges stated that in all murder cases for one to be
pronounced guilty of the case of murder then the prosecution must bring evidence to rebut his
presumed innocence2. It was further stated that the burden of proof to rebut the presumption of
innocence lies on the prosecution and does not shift unless a prima facie case has been
established as per Ssekitoleko v Uganda3.

1.Article 28(3)(a) of the constitution of the republic of Uganda as severally amended.

2.(1935) UKHL 1.

3.(1967) EA 531.

PRESUMPTION OF DEATH. KATRINA AKELLO

Where there is no Evidence that a person was alive for a continuous period of seven
years or more on the proof that (i)that there are people who would be likely to have heard of
him over that period (ii) that those persons have not heard from him and then thirdly(iii) That all
the required investigations have been made concerning the circumstances of such a person, that
person will be presumed to have died at some point of time within that period of seven years, An
Extinguishment of a period of 3 years beginning from the date of disappearance raises a
presumption of death of the missing .

As we can see the case of Prudential Assurance v Edmonds, this was an action based on
life insurance. The issue was whether the defendant was dead or alive? The family members
gave Evidence of not having heard from him for a period of more than 7 years though the Niece
had written to her mother from Australia stating to have seen him on the streets in Melbourne but
that he was lost in the crowd before she spoke to him, and the Court held that the presumption of
death could not hold clear evidence by the Niece. The extend of the inquires to be made depends
upon the circumstances of the case in question, and that in some cases the circumstances are not
appropriate to the making of the inquiries , Evidence that a person has made all the possible
means as to inquiries appropriate to the circumstances is also in some cases, to adduce evidence
of a person who would be likely to have heard of the missing person

The presumption of death allows the Court to presume the fact of death of the missing
person ,however mere proof of the mere fact of death is very insufficient to the party seeking
to establish that the missing person died unmarried, without a child or even without next of kin,
it is clear that even though these additional issues are not proved ,additional evidence is
required not only to establish the fact of death but also the date of death.. It looks so clear from
the authorities that the presumption establishes on the, additional evidence is required to prove
that the death took place at a particular period of time, however there are two criteria as to the
date on which the fact of death may be presumed. On one criteria, the fact of death may be
presumed at the date of proceedings, second criteria is that the fact of death may be presumed at
the end of a continuous absence for a period of seven years. Therefore depending on which
means the party seeking to establish that death occurred on a particular date prior to the date of
which death is presumed, additional evidence will be required. Also another party seeking to
establish that death occurred on a particular date prior to the date of action, will only be assisted
by the second means , A case in point is Chipchase v Chipchase where a woman charged her
second husband with adultery, desertion and failure to maintain and her first marriage was in
1915,after not hearing of her husband since 1916 ,she remarried, it was held that the first
criteria used deprived the presumption of death of so much of its value that the second criteria
is to be considered.

Also Section 184 of the law of property Act which provides that in cases where,
after the commencement of this Act, two or more persons have died in circumstances rendering
it uncertain which of them survived the other or others, such deaths shall subject to any order of
the Court, for all purposes affecting the tittle to property, be presumed to have occurred order of
seniority, and accordingly the younger shall be deemed to have survived the elder.

As per section 19(1) the Matrimonial Causes Act, it is provided that any married person
alleging that reasonable grounds exist for supposing that the other party to the marriage is dead
may present a petition to the Court to have the same presumed and to have the marriage
dissolved.

As well section 19(3) provides that if for a period of seven years or more the other party to the
marriage has been continually absent from the petitioner and the petitioner has no reason to
believe that the other party has been living within that time shall be evidenced that the other
party is dead until the contrary is proved. The basic fact established should also relate to the
belief of the petitioner who must give evidence. A case in point is the case of Thompson v
Thompson where the court left open the question whether the petitioner is required to have
made all due inquiries appropriate to the circumstances where it was held that a failure to so
could be relevant to the issue of the reasonableness of the petitioner’s belief.

PRESUMPTION OF SURVIVORSHIP. MONICA LANYUT

Presumption of survivorship is a type of presumption that one of two or more persons was the
last to die in a common disaster, made so that the estate may be settled and the final heirs
determined.

It is considered where there is co ownership of property between two or more persons for
instance where two persons X and Y owns a company, X dies then Y survived X making Y the
sole owner of the property. The concept of co - ownership is based on joint tenancy which entails
the presence of the four unities and the right of survivorship so therefore our discussion will be
based on the right of survivorship (jus accrescendi) and it's presumption. Joint tenants as
individuals do not have distinct sharesin the co - owned land but rather own the whole as a group
so upon the death of one joint tenant his or her interest in the land is extinguishedand does not
form part of his or her estateas in the case of Wight V Gibbons¹ where the high Court found
against the Gibbon sisters and held that where a joint tenant transfer their interest to a third party,
the third party becomes a tenant in common of the property rather than a joint tenant.Just like in
case of husband and wife if they own their matrimonial home in Joint tenancy, the presumption
is that whoever survive the other automatically becomes the sole owner of the property/ house.
Because of the right of survivorship, property held in joint tenancy cannot be devolve by will or
intestate succession unless the joint tenancy has been previously severed in the lifetime of the
deceased joint tenant. Where co owners die in the same calamity, which makes it impossible to
determine who survived the other, the presumption of survivorship does not apply and this is
illustrated in the case of Wilcox V Mcleroth², here, the husband and wife executed identical wills
each appointing the other sole heir and executor of estate and effects. They both drowned in a
lake circumstances in which it was not known who survived the other. It was held that according
to common law, the estate of each of the deceased must be administered as in intestacy it being
presumed that they both died at the same time. In England, the common law has been modified
by the law of property Act of 1925³. The section provided that where two or more die in
circumstances rendering it uncertain which of them survived the other it should be presumed that
the younger survived the older. Since the English act does not apply in Uganda, it is suggested
that common law rule expounded in Wilcox V Mcleroth is the appropriate law applicable. The
effect of the rule is that in the death of co owners in a common calamity, their heir would inherit
the company as if the deceased died without will.1

THE PRESUMPTION OF LEGITIMACY. (GLORIA ATUBE

On the proof or admission of the basic fact that a child was born or conceived during lawful
wedlock, it is presumed, in the absence of sufficient evidence to the contrary, that the child is
legitimate. The law on presumption of legitimacy is governed by article 34 of the constitution
of Uganda, whereby it is noted that, it’s the right of a child to know his or her parents.
Accordingly, under section 70 of the Children’s Act, the burden of proof lies on the person
alleging it. The presumption may be rebutted by evidence showing that the husband and wife did
not have sexual intercourse as a result of which the child was conceived. The evidence in rebuttal
may be evidence of: non-access; the husband’s impotence; the use of reliable contraceptives; the
blood groups of the parties; the results of a DNA test; the minimal nature of the husband’s access
to the wife; an admission of paternity by another man; the wife’s cohabitation with another man
for an appropriate period of time before the birth of the child; the results of a DNA test excluding
the husband as the father combined with evidence of sexual intercourse with another man who
refused to comply with an order for a blood test; or the conduct of the wife and illicit partner to
the child. Evidence of adultery by the mother will not rebut the presumption in the absence of
evidence that at the time of conception sexual intercourse between the husband and wife did not
take place. Either birth or conception during wedlock suffices to give rise to the presumption.
Thus, where a child is born to a married woman so soon after the marriage ceremony that
premarital conception is indicated, the presumption applies. Likewise, the presumption applies
where a child is born to a woman so soon after the termination of her marriage that conception
during the marriage is indicated. In Re Overbury, Sheppard Vs Matthews the presumption was
applied in such circumstances notwithstanding the remarriage of the mother prior to the birth of
the child. Six months after her first husband’s death a woman had remarried, giving birth to a girl
two months later. Harman J held that the child was the legitimate daughter of the first husband,
there being insufficient evidence to rebut the presumption. In a case such as this, the presumption
1
(1949) 78 CLR 313, Cheshire and Burn, Modern law of Real Property, supra, p. 209
² (1988) 3 ALLER1058

³ Section 184.
could have operated in favor of the child’s legitimacy by virtue of her birth during the second
marriage. This remains the case even if the period of cohabitation was short: Under s 48(1) of
the Matrimonial Causes Act 1973, the evidence of a husband or wife shall be admissible in any
proceedings to prove that marital intercourse did or did not take place between them during any
period. . According to the text book of modern law of Evidence by Adrian Keane & Paul
McKeown at page 661, states that, under presumption of legitimacy, that where paternity is in
issue, it is obviously correct to treat the date of conception, and not the date of birth, as the
determinative factor, so that provided the child can be proved to have been conceived during the
first marriage, it will be held to be the legitimate offspring of the first husband, even if born, say,
four or six months after the second marriage. In a case where marriage takes place so soon after
termination of an earlier marriage that it is unclear whether conception occurred during the first
or second marriage, it is submitted that although a presumption operates in favor of the child’s
legitimacy by virtue of birth during the second marriage, it should not be determinative of
paternity, if that is in issue. The presumption applies, although it may be more easily rebuttable,
where there is a maintenance order in force against the husband (unless it contains a non-
cohabitation clause), where proceedings for divorce or nullity have been commenced and even
where the husband and wife are living apart, whether or not under a separation agreement.
However, the presumption does not apply where a decree of judicial separation or a magistrate’s
separation order is in force. In such circumstances, it is presumed that the parties did not have
sexual intercourse. Accordingly, if the child is born more than nine months after the separation,
there is a presumption of illegitimacy rebuttable by evidence of intercourse between the husband
and wife. The authorities suggest that in civil proceedings the presumption of legitimacy operates
as a persuasive presumption. At common law, evidence in rebuttal was required to meet a high
standard of proof but the matter is now governed by section 26 of the Family Law Reform Act
1969, which provides that: Any presumption of law as to the legitimacy or illegitimacy of any
person may in any civil proceedings be rebutted by evidence which shows that it is more
probable than not that the person is illegitimate or legitimate as the case may be and it shall not
be necessary to prove that fact beyond reasonable doubt in order to rebut the presumption. Thus,
the party seeking to rebut the presumption bears the legal burden of proving illegitimacy on a
balance of probabilities and, in accordance with general principles, will fail if the evidence is
such that legitimacy is as probable as illegitimacy. Once evidence has been laid, it must be used
without using the presumption as a make-weight in the scale of legitimacy. So even weak
evidence against legitimacy must prevail if there is no other i.e. in Knowles Vs Knowles [1962]
P 161, where the presumption was applied on a finding of conception as a result of intercourse
between the husband and wife at a time after a decree nisi had been granted but before it had
been made absolute. Wrangham J was of the opinion that the presumption involved both a
presumption of paternity and a presumption as to the date of conception.. However, if the case
involves a finding that someone other than the mother’s husband is the father of the child, the
standard of proof to make the finding of paternity is a heavy one, commensurate with the gravity
of the issue and although not as heavy as in criminal proceedings, more than the ordinary civil
standard of balance of probabilities.

PRESUMPTION OF MARRIADGE.

According to the text book titled Law of modern Evidence by… at page 358, states that,
There are three discernible presumptions of marriage: a presumption of formal validity, a
presumption of essential validity, and a presumption of marriage arising from cohabitation.

The presumption of formal validity

The formal validity of a marriage depends upon the lex loci celebrationis. A failure to comply
with the formal requirements of the local law may make a marriage void. Under English law, a
Church of England marriage (otherwise than by special licence) may be void because of
irregularities such as failure duly to publish banns or to obtain a common licence. In the case of
other marriages under English law, examples include cases of failure to give due notice to the
superintendent registrar and cases in which a certificate and, where necessary, a licence have not
been duly issued which is in conformity with Uganda’s Marriadege Act on formalities of a valid
marriadge. However, on the proof or admission of the basic facts that a marriage was celebrated
between persons who intended to marry, the formal validity of the marriage will be presumed in
the absence of sufficient evidence to the contrary. The authorities almost always include among
the basic facts the cohabitation of the parties following the ceremony of marriage but the
presumption has been held to apply to death-bed marriages though under the Marriadge Act
cohabitation is not lawfully recognised. It is submitted that cohabitation is not among the basic
facts giving rise to the presumption. The leading case relating to an English marriage is Piers Vs
Piers. A marriage ceremony had been celebrated between two persons who had shown their
intention, at the time, to marry. The ceremony was performed in a private house but there was no
evidence that the bishop of the diocese had granted the necessary special licence. The House of
Lords held that the marriage was formally valid. However, this case should be distinguished
from other cases in Uganda’s jurisprudence since it has been over ruled with a view to observe
the formal validities of a valid marriadge as provided under the Marriadge Act. An example of
the application of the presumption to a foreign marriage is Mahadervan Vs Mahadervan.
Rejecting as irrational legal chauvinism an argument of counsel for the husband that there was
no presumption in favor of a foreign marriage the establishment of which would invalidate a
subsequent English one, Sir Jocelyn Simon P applied the presumption and held the foreign
marriage to be formally valid. In civil proceedings, the presumption operates as a persuasive
presumption placing a legal burden on the party seeking to rebut formal validity. The standard of
proof to be met by that party is high. In Piers Vs Piers Lord Cottenham cited with approval the
words of Lord Lyndhurst in Morris v Davies: ‘The presumption of law is not lightly to be
repelled. It is not to be broken in upon or shaken by a mere balance of probabilities. The
evidence for the purpose of repelling it must be strong, distinct, satisfactory, and conclusive.
Lord Campbell said: ‘a presumption of this sort in favor of marriage can only be negatived by
disproving every reasonable possibility.’ In Mahadervan Vs Mahadervan Sir Jocelyn Simon
P held that the presumption can only be rebutted by evidence which satisfies beyond reasonable
doubt that there was no valid marriage. In relation to matrimonial causes more generally,
although the authorities remain in conflict, subsequent trends favor the ordinary civil standard
and it is likely that in future this lower standard will be applied. When Lord Cottenham in Piers
v Piers adopted the words of Lord Lyndhurst in Morris Vs Davies, an authority on the
presumption of legitimacy, the evidence in rebuttal of that presumption was required to meet a
high standard of proof. The presumption of legitimacy is now rebuttable by evidence which
satisfies the ordinary civil standard on a balance of probabilities. It is submitted that the standard
of proof to be met by the party seeking to rebut the presumption of marriage should also be the
ordinary civil standard.

The presumption of essential validity.

A marriage may be void on the grounds that the parties lacked the capacity to marry. Under
English law, for example, the parties may lack the capacity to marry if they are related within the
prohibited degrees or if either of them is under the age of 16 or already married. However, on the
proof or admission of the basic fact that a formally valid marriage was celebrated, the essential
validity of the marriage will be presumed in the absence of sufficient evidence to the contrary. In
the words of Pilcher J in Tweney v Tweney, ‘The petitioner’s marriage to the present
respondent being unexceptionable in form and duly consummated remains a good marriage until
some evidence is adduced that the marriage was, in fact, a nullity.’ Although the matter is far
from clear, in civil proceedings the presumption would appear to operate as a persuasive rather
than evidential presumption, placing a legal burden on the party seeking to rebut it. However, the
standard of proof required to rebut the presumption is lower than that in the case of the
presumption of formal validity. In Gatty and Gatty v A-G it was held that evidence of a valid
prior marriage sufficed. A similar conclusion was reached in Re Peete, Peete v Crompton. A
woman, W, made an application under the Inheritance (Family Provision) Act 1938 as the widow
of Y. W had separated from her first husband X prior to 1916 and in 1919 went through a
formally valid ceremony of marriage with Y. The question arose as to the essential validity of the
subsequent marriage. The court held that the application failed. Although a presumption of
essential validity arose in relation to the subsequent marriage, there was some evidence before
the court, namely the existence of the first marriage, that in 1919 W lacked the capacity to marry
Y. However, where the prior marriage is of doubtful validity, there is authority that the
presumption is not rebutted. In most of the cases where the presumption of essential validity has
fallen to be applied by the courts, one of the parties to a marriage has been married previously.
The question has been whether the earlier marriage had terminated by the time of the subsequent
ceremony. This issue may in turn require consideration of the presumption of death, the
presumption of continuance of life, or even the presumption of essential validity in relation to the
earlier marriage. Two conflicting presumptions applied to the same facts in Monckton Vs Tarr.
A, a woman, married B in 1882. B deserted A in 1887. In 1895, at which time there was no
evidence that B was alive, A married C. In 1913, at which time A was still alive, C married a
woman D. D made a claim for workmen’s compensation as the widow of C. The employers
alleged that the 1913 marriage was void because of the 1895 marriage. D replied that the 1895
marriage was void because of the 1882 marriage. D’s claim was dismissed by the Court of
Appeal. Although a presumption of essential validity arose in relation to the marriage of 1913,
the same presumption applied to the marriage of 1895. These two presumptions cancelling each
other out, it was for D to prove C’s capacity to marry her and this she could only do by showing
that B was alive at the date of the 1895 marriage, something which she had failed to do. A
different approach was adopted, however, when a similar problem arose in Taylor v Taylor,
There was some weak evidence that a woman, W, had married X. Subsequently, in 1928, X
married another woman Y. Y left him and in 1942, when X was still alive, married Z. Z
petitioned for a decree of nullity alleging that his marriage to Y was void because of the 1928
marriage. Y replied that the marriage of 1928 was void because of the earlier marriage between
W and X. It might have been expected, on the reasoning employed in Monckton v Tarr, that the
court would have held that the presumptions in favour of the 1928 and 1942 marriages
effectively cancelling each other out, it was for Y to prove her capacity to marry Z and that she
had failed to do this, the weak evidence adduced to show the marriage between W and X being
insufficient for the purpose. However, Cairns J, expressing a preference for the preservation of
existing unions, rather than their avoidance in favour of doubtful earlier and effectively dead
ones, held that the marriage of 1942 was valid. The evidence of the earlier marriage of doubtful
validity, that is the marriage of 1928, did not suffi ce to rebut the presumption of essential
validity in relation to the marriage of 1942.

The presumption of marriage arising from cohabitation.

On the proof or admission of the basic fact that a man and woman have long cohabited as if man
and wife and have acquired the reputation of being husband and wife, it is presumed, in the
absence of sufficient evidence to the contrary, that they were living together in consequence of a
valid marriage. The authorities suggest that in civil proceedings this presumption operates as a
persuasive presumption. Evidence in rebuttal is required to meet a high standard of proof: it must
be ‘clear and firm’ or ‘of the most cogent kind’. In Sastry Velaider Aronegary Vs Sembecutty
Vaigalie the issue concerned the validity of a marriage ceremony which had taken place between
Tamils in Ceylon. The Privy Council, of the opinion that the party in whose favor the
presumption operated was under no obligation to prove that the ceremony had complied with the
requisite customs, held the parties to be validly married. Although in this case evidence was
given that a ceremony had taken place, it is clear that the presumption may apply in the absence
of such evidence. In Al-Saedy v Musawi it was held that a party will succeed in rebutting the
presumption if he can identify the only known ceremony or event which might have constituted a
marriage and can show that it did not have that effect in English law.

IRREBUTTABLE PRESUMPTION. SHARON ADONG

This also at times referred to as conclusive evidence. They are the ones which cannot be
disproved and court is under no obligation to draw conclusion and no evidence is receivable to
dislodge. lt applies in situation where on the proof or admission of a basic fact, another fact must
be presumed and the party against whom the presumption operates is barred from adducing any
evidence rebuttable. ln Irrebuttable presumption there is really no need for a person who has
been found in the wrong to give in explanations since such offences do require proof from the
accused, it is an automatic one that is always necessary. Lt is majorly common in some offences
of strict liability that raise Irrebuttable presumption.

For example, it shows circumstances of an occasion being Irrebuttable. For instance, section 30
of the Children and Young Person's Act 1993 provides that it shall be conclusively presumed that
no child under the age of ten years can be guilty of an offence. Also under section 76 of the
Sexual Offences Act 2003,provides that in certain sexual cases including cases of rape, it is
proved that the accused did the relevant act (intentional penetration) and that he intentionally
deceived the complainant to consent to it by impersonating a person known personally to the
complainant; it is conclusively presumed that the complainant didn't consent to the act and that
the accused didn't believe that the accused consented to it.

There are however some offences of strict liability that raise Irrebuttable presumption criminal
law, strict liability is one which does not have to be proved in relation to one or more elements
comprising the actus reus although intention, recklessness or knowledge may be required in
relation to other elements of the offense. Hence the liability is said to be strict because
defendants will be convicted even though they were genuinely ignorant of one or more factors
that made their acts or omission criminal. The defendants then may not be culpable in any real
way that there is not even criminal negligence the least blameworthy level of mens Rea.

In Uganda strict liability offences that raise Irrebuttable presumption include the following;
driving without a license, possession of fire arms, defilement and so forth.
Under Irrebuttable presumption of children criminal responsibility, in Uganda the one of twelve
years below was set as the age of criminal liability for children. This therefore means that if a
child below the age of 12 years commits a crime, he or she is not criminally responsible for the
offense, hence this is an example of Irrebuttable presumption because it is presumed that such
children of such tender age do not have the intention to commit offences.

Strict liability offences can be seen in the case of Sweet v Parsley (1970) AC 132,where the
appellant Stephanie Sweet (S),was a sub tenant of farm house, where the cannabis resin was
found. S no longer lived in the house and let out several rooms to the tenants. She did retain a
room but only returned occasionally to collect letters and rent. The appellant was charged and
convicted under section 5(b) of the Dangerous Drugs Act 1965 with being concerned in the
management of premises used for the purpose of smoking cannabis resin. Here Lord Reid's then
commented that mens rea is to be interpreted into legislation as follows; there's for centuries
been a presumption that parliament did not intend to make criminals of persons who were in no
way blameworthy in what they did. lt then means that whenever a legislative provision is silent
as to mensrea there is a presumption that in order to give effect to the will of Parliament, we
must read in words appropriate to require mensrea.

CONFLICTING PRESUMPTIONS. DAVID TUMUSIIME

Where two presumptions apply to the facts of a case, the court may be required to draw two
conclusions, the one conflicting with the other. If the two conflicting presumptions are of equal
strength so that each operates to place a legal or, as the case may be, evidential or tactical burden
on the party against whom it operates, one obvious and equitable solution is to treat the two
presumptions as having cancelled each other out and to proceed, as if no presumption were
involved, on the basis of the normal rules relating to the burden and standard of proof. As we
have seen, this was the solution adopted in Monckton v Tarr, where the same presumption of
essential validity applied to two different ceremonies of marriage. However, when a similar
conflict of presumptions arose in Taylor v Taylor, Cairns J preferred to preserve an existing
marriage rather than avoid it in favour of an earlier doubtful one. This approach suggests that the
strength of a presumption may be gauged by reference to the comparative likelihood of the two
presumed facts, or even to general considerations of public policy, as opposed to the nature of
the burden placed on the party against whom it operates. Inherently imprecise, such an approach
has the obvious advantage of flexibility compared to any set formula. In cases where the two
presumptions are, by reference to the burden placed on the party against whom they operate, of
unequal strength, there is a dearth of authority. To say that the presumption of greater strength
should prevail, is to acknowledge that the conflict is more apparent than real. Where, for
example, the confrontation is between a presumption of law and a presumption of fact, the
determinative factor is the incidence of the legal burden of proof; whether the presumption of
law operates to place a legal or evidential burden on the party against whom it operates, the party
bearing the legal burden of proof will lose on the issue in question if he fails to discharge it by
adducing sufficient evidence to meet the required standard of proof. R v Willshire, often cited as
an example of conflicting presumptions, is, it is submitted, properly understood in this sense. The
accused was convicted of bigamy, having married D in the lifetime of his former wife C. In fact
he had gone through four ceremonies of marriage: with A in 1864; with B in 1868; with C in
1879; and with D in 1880. The prosecution, who bore the legal burden of proving the validity of
the ceremony in 1879, relied upon the presumption of essential validity. The accused sought to
show that the marriage of 1879 was void. He could prove that A was alive in 1868 by virtue of
his earlier conviction of bigamy in that year (he married B in the lifetime of A) and he relied
upon the presumption of fact as to the continuance of life to establish that A was still alive in
1879. The trial judge did not leave the question whether A was alive in 1879 to the jury but
directed them that the defendant bore the burden of adducing other or further evidence of A’s
existence in 1879. On appeal, this was held to be a misdirection and the conviction was quashed.
Lord Coleridge CJ, in the course of his judgment, referred to a conflict between the presumption
of essential validity and the presumption of continuance of life. Although the judgment is
consistent with the view that the two presumptions had cancelled each other out, it is equally
consistent with the ordinary operation of both, the determinative factor being the incidence of the
legal burden. The prosecution bore the legal burden of proving the validity of the ceremony of
1879. Once they had proved the basic facts giving rise to the presumption of essential validity of
that ceremony, the defendant bore an evidential burden to adduce some evidence in rebuttal. He
had successfully discharged this burden by relying on the presumption of the continuance of life
and accordingly the jury should have been directed that they could only convict if the
prosecution had satisfied them beyond reasonable doubt that the ceremony of 1879 was valid.
EFFECTS OF PRESUMPTIONS ON THE BURDEN OF PROOF.

DIRECT EVIDENCE: (AUMA LAURA).

This refers to evidence that consists of a testimony of the perception of the facts in issue. OR it
can be defined as proof of a fact which, if accepted by the court, does not require any type of
inferences to be drawn from it. That is to say that, this type of evidence directly links a person to
the crime. For evidence to be determined as direct there must be evidence from a person
(witness) who saw, heard and felt the fact in issue. Example of direct evidence include; eye
witness accounts for instance James testifies in court that he saw Emily stabbing Mark with a
knife. That therefore would be deemed as direct evidence linking to the offence.

CIRCUMSTANTIAL EVIDENCE:

This refers to evidence which, if accepted by the court, does require further inferences to be
drawn Sfrom it. It can also be defined as a set of facts that, when taken and put together lead to a
desired conclusion. Circumstantial evidence is as known as direct evidence. It is admissible in
the court unless the connection between the facts to the inference is too weak to help in the
deciding case. Circumstantial evidence leads us in the direction of what might have happened but
does not give us anything conclusive. So therefore it requires logical reasoning to prove a fact
that something occurred so as to assist the judge arrive at a desired and satisfactory conclusion.
In the case of Shepherd V The Queen2, the question in this case was whether circumstantial
evidence could be should be satisfied beyond reasonable doubt of each fact from which inference
of guilt to be drawn from. Court held that when dealing with circumstantial evidence, Juries must
be directed that they cannot use a fact as a basis for inferring guilt unless that fact is proved
beyond reasonable doubt. For instance if A heard a sound of a gunshot and run to the scene and
when he arrived, he found the B (accused) holding a smoking gun in his hand and standing by
the corpse, the evidence in this case is circumstantial and by this circumstances we cannot easily
assume that the accused is the one who committed the crime. Therefore these circumstantial facts
may result into possible inferences like the accused may have been shooting at the escaping
2
Shepherd v the Queen [1990] 170 CLR 573.
killer or he could be a by stander who picked up the weapon after the killer had dropped it and
escaped thus the burden would be upon the prosecutor to create a link between the facts and the
inferences and prove beyond reasonable doubt that the accused is guilty or killed the deceased.

In Nail Ahmed V Republic3cars that had been stolen were recovered with finger prints of the
accused on various parts of the cars. Finger prints of the accused were also found on the other
parts that had been removed from the cars. The issue was whether there was sufficient evidence
to convict the accused person of theft. Court held that the fact that accused’s finger prints were
on the cars and parts in circumstances that could not be explained and in view of the fact that
they could not have been there by accident or innocence, therefore there was circumstantial
evidence to connect the accused person to the crime of theft. In this case, what amounted to
circumstantial evidence was the fact that finger prints of the accused were found on several parts
of the stolen cars and the fact that there was no explanation for how the finger prints got to the
car parts hence court relied on the circumstances surrounding the commission of the offence of
theft and convicted the accused. In Singh V Republic 4, court observed that circumstantial
evidence when standing alone would be disregarded unless it’s inconsistent with the explanation
of innocence. This is to say that the circumstantial evidence should not be capable of having any
other explanation but only point to one conclusion that it was the accused that committed the
offence.

In conclusion, when evidence is circumstantial, the jury, whether in a civil or criminal case is
required to draw an inference from the circumstances of the case whereby in a civil case, the
circumstances must raise a more probable inference in favor of what is alleged; and in a criminal
case, the circumstances must exclude any reasonable hypothesis consistent with innocence.

3
Nail Ahmed v republic [1962] EA 345
4
Singh v Republic