THE DOCTRINE OF LAST SEEN
Joshua Kenga Arome
INTRODUCTION
I have mentioned relevancy and admissibility in the above section and the question that may now be posed is how they relate to the doctrine of last person seen. In law there are, among a host of other principles, the principles of relevancy and admissibility. I prefer relevance to mean ‘relating to’ and admissibility ‘acceptability’ of evidence adduced. Pursuant to Section 5 of the Kenyan Evidence Act only relevant evidence can be admissible. (CAP 80 Laws of Kenya) However, not all relevant evidence is admissible, notably; circumstantial, opinion, hearsay and character evidence, subject however to the statutory exceptions. Now the doctrine of last person seen forms part of what is called circumstantial evidence, thus the uproar that first, a person should be found guilty on the basis of expressly prohibited evidence, and second, which is worse still, that it is pronounced that this doctrine stands as a negation or exception to the universally accepted principle of presumption of innocence. I have read through the 110 page judgment and my analysis, in achieving the objectives laid out in the abstract, on circumstantial evidence and therefore this doctrine is as follows.
Legal Underpinnings of Circumstantial Evidence vis The Doctrine of Last Person Seen
Circumstantial Evidence
Circumstantial Evidence is defined as any fact from the existence of which a judge infers the existence of a fact in issue. It is also referred to as facts relevant to the issue. The Evidence Act categorically excludes circumstantial evidence as admissible. However, it still provides exceptions for such types of circumstantial evidence under Sections 6-16 where these exceptions can be used to find the guilt of an accused.
In cases of murder circumstantial evidence is used to find accused persons guilty where all evidence points irresistibly to the accused and where no other reasonable proposition can be made than that the accused has to be guilty of the offence proffered on him. The jurisprudence on this is firmly settled in our law, following landmark cases like Rex v Kipkering arap Koske and Another((1949) 16 EACA 135), that have guided our courts on the issue for precisely three-quarters of a century now.
Doctrine of Last Person Seen
The Doctrine of Last Person Seen is based on circumstantial evidence where the law prescribes that the person last seen with the deceased before their death was responsible for his or her death and the accused is expected to provide an explanation as to what happened. The doctrine has a sound basis and it is important to point out that it should and does not work in a vacuum. Other evidence adduced has to support the fact that it is the accused who was last seen with the victim and hence caused the murder in the absence of evidence to the contrary. In Ndunguri v Republic ([2001] EA 179), the appellant was convicted of murder because the facts surrounding the death were that the appellant was the last person to be seen with the deceased, that the deceased's body was later retrieved from the accused's latrine, and that the accused could not give a plausible explanation as to how he and the deceased parted. To ground a conviction therefore on the basis of this doctrine the trier of facts has to look at the facts in their totality. In the absence of the other surrounding facts it should be that such presumptions of guilt should not be made.
Application of the Doctrine in R v Jowie and Jacqueline
The facts of the Jowie case are well established. The first accused herein was convicted based on circumstantial evidence that he was the last person to be seen with the deceased, along with other reasons immaterial to the doctrine under inquiry. Now did the Judge misdirect herself in the application of the doctrine? Is her pronouncement on the doctrine valid law?
1. Application of the Principle
As stated above the application of this doctrine should not be in a vacuum. Regard has to be had to all the facts of the case in their entirety. From the facts of the case all evidence directly pointed to the accused. The military training, theft of the identity card, the kanzu disguise, the deliberate diversion of the force’s attention all the way to the refusal to publicise the death of the deceased were facts surrounding the murder. The totality of all these facts and the fact that the accused was the last person to be seen with the accused all point out that it is the first accused who committed the homicide. Furthermore, the first accused failed to give a reasonable explanation as to how he left the accused, that is if he left her alive. Therefore the Justice did not misdirect herself in applying the principle to find the first accused guilty.
2. Legality of the Judge’s statement
The controversial statement is paragraph 176 of the judgment which is to the effect that the said circumstantial evidence doctrine operates as a negation or an exception to the doctrine of presumption of innocence. The principle that an accused should be presumed innocent until proven guilty has its roots at common law and the same has been adopted by our legal framework. The first recorded instance of the formulation of the principle was in the locus classicus Woolmington v DPP,([1935] AC 462) the gist of which was that the legal burden of proving guilt was always on the prosecution throughout the entire case, and that there was no obligation on the part of the accused to prove his innocence. Under the 2010 Constitution of Kenya, Article 50(2)(a), it provides that a person has the right to be presumed innocent until the contrary is proved. Following from this therefore, the declaration that the last person seen with the deceased should be presumed as having been the murderer is an affront to the law. As such it should be that the judge misdirected herself in stating that the doctrine operated as an exception to the principle of presumption of innocence. Or did she?
The evidentiary burden is the burden that shifts to the accused during criminal trials. Statutes exist that impose evidentiary burdens on accused persons in negation of the presumption of innocence.( See Section 111 Evidence Act CAP 80 Laws of Kenya; Section 58 Anti-corruption and Economic Crimes Act CAP 65 Laws of Kenya; Section 9(1) Stock and Produce Theft Act CAP 355 Laws of Kenya; Section 47 Public Health Act CAP 242 Laws of Kenya.) However, there still remains to be seen any provision to the effect that the doctrine of the last person seen shifts the evidentiary burden on the accused. So where does this legal justification spring up from?
Precedent forms a useful source of law in Kenya. The Honourable Justice quoted Kimani v Republic, a decision by the Court of Appeal when formulating her proposition (the person last seen with the deceased before their death was responsible for his or her death and the accused is expected to provide an explanation as to what happened). The wording of the statement is clear that there should be presumed guilt where such facts exist. The implication therefore is that the presumption should operate as an exception to the presumption of innocence. So indeed, it is a correct application of the law and it suffices to find an accused person guilty.
CONCLUSION
Having noted that Honourable Lady Justice Grace Nzioka correctly applied the law I find it necessary that the doctrine of last person seen should not be adopted as legal rule. In my opinion such adoption would more likely introduce laxity for both the bar and the bench at the expense of the rights of an accused. The doctrine should only be used as a last resort to found a conviction, and not the first port of call whenever a case is brought for trial. In any event, every criminal case should be decided on its own facts to avoid occasioning injustice on accused persons.
Interesting take
ReplyDeleteEvidence and when the burden of proof shifts has always been an elusive topic for many advocates
ReplyDeleteGood read. However I think this is the point where the conceptualisation of article 24 of the constitution is much needed. The doctrine of last seen attempts to limit a right in the Bill of Rights (article 50(2)(a)). Article 24(1)- A right or fundamental freedom in the Bill of rights shall not be limited by LAW....it's nowhere in our statutes (only in precedents). Is that enough?
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ReplyDeleteI appreciate most of your arguments but greatly disagree with your conclusion about the application.The law was embarrassingly interprated by a judge who used her opinion not law.The major reason why the doctrine is considered as circumstantial evidence is because the presumption that he was the last person to see her before her death is nothing but that,a presumption and there is no conclusive evidence that the prosecution showed to show that he was indeed the last person to see her and noone else saw her after him.There was no cctv or other evidence which showed that noone else saw her before her death so why should the burden of proof fall on him.What stops a husband from being told that because his wife died in their home,he is completely and utterly guilty because he cannot prove otherwise.It is a common notion that it's rather ten guilty people be set free than an innocent person be put behind bars.That is a grave error of law as it goes against everything the justice system stands for and will be shot down by the court of appeal
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