BLW 2101 Hearsay Evidence Notes

7/24/2019 BLW 2101 Hearsay Evidence Notes

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TOPIC FOUR

HEARSAY

EVIDENCE


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OBJECTIVES

To understand the general principle andrationale of hearsay evidence

Examine hearsay at Common law

Examine exceptions to the hearsayrule/evidence

Apply the general principle

Conclusion


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General principle andrationale

Hearsay involves a serial repetition: one person,the witness, repeats what an individual(declarant) previously has said outside thecourtroom

Not all out of court statements are consideredhearsay (exceptions to the hearsay rule)

For evidence to constitute hearsay, therepeated statement must be offered for the

purpose of proving that what the declarantsaid is truejust as if the declarant were on thewitness stand, giving testimony that theproponent wants the trier to believe


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General principle

Assume the declarant stated to awitness that the X stole the officecopier last week. Evidence of thisstatement is offered b the witnesswho overheard it to prove the copierwas stolen by X last week. The

proffered statement is hearsay


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General principle

The basis for the rule against hearsay and thereason for sustaining the opponents objectionis that the opponent is unable to confront andcross-examine the real witness (the

declarant) and therefore expose weaknesses inhis statement

The statement is classified as hearsay only if theproponent of the evidence seeks to have thetrier believe that the declarantsout-of-courtstatement is true

That is only if the proponent seeks to have the fact-finder rely on the declarantscredibility


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General principle

When confronted with hearsay evidence youshould always ask yourself:

What is the purpose of the evidence?

If the purpose of the evidence is to prove the

existence of a fact or facts (e.g. how thecollision occurred), the evidence will beinadmissible unless it falls in the exception to thehearsay rule

If the purpose of the evidence is only to provewhat another person said (e.g. what theeyewitness said as to how the accidentoccurred) the evidence will be admissible forthat purpose


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General principles The following example illustrates the nature of

hearsay and the need for cross examination

In a prosecution for the sale of illegal weapons, witnessW testifies that declarant B stated that he B observed theaccused selling a machine gun. If the proponent offersWs testimony to show that the accused made the sale,

the trier is asked to believe Bs account of the facts torely upon his credibility. The cross examiner, unable toconfront and interrogate the absent B, will find it difficultto expose weaknesses in Bs statement. X-examination

of the declarant, were he present, might reveal that hewas deliberately lying or that even though he was notconsciously making a false assertion, his statement wasinaccurate because of poor observation, faulty

memory,etc


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General principles

In sum if B were on the stand the x-examinationcould test not only whether B was willing to tell thetruth, but also whether he had the ability toperceive the event clearly and to rememberadequately

The examiner could also ascertain whether B is usingthe language she intendedlanguage that rendersan unambiguous account of what occurred


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General principles

The following are hearsay dangers and hence itinadmissibility

1) Defects in perception: statement may beunreliable because the declarant did notobserve or hear accurately

2) Defects in memory: the declarantsrecollectionmay have been inaccurate or incomplete

3) Defects in sincerity or veracity: the declarantmay have be inaccurate or incomplete

4) Defects in narration or transmission:mistransmissions may arise because thedeclarantsstatement is ambiguous


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General principle

At common law, a hearsaystatement that has the purposeof proving a fact is not allowed,

but a statement proving whatthat person heard or read it isallowed


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General rule

63 of the KEA states that

assertions by a witness ofwhat some other person hastold him concerning what

she (that other person) hasperceived is inadmissible


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General rule

This means hat if the evidence refers to a factwhich could be seen, heard or perceived byany other sense, it must be the evidence of awitness who saw, heard or otherwise perceived,

as the case may be, the fact in question

So too if the evidence refers to an opinion, or tothe grounds on which that opinion is held,evidence of the person who holds that opinionon those grounds must give the evidence


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General rule Wawa s/o Kilongo v. R (1970) 17 EACA 152

Facts:

It was alleged that accused had retained poll-taxmoney and then, fearing prosecution, handed it over toone Mwinyipembe to take to the Wakili Mzee. WhenMzee refused to accept it, the accused handed

Mwinyipembe more money telling him to go back toMzee and offer that to him so that he refrains fromreporting the matter. Mzee gave evidence as to whathad occurred and had been said to him

CA held: when Mzee deposed to Mwinyipembes

coming to him with 500/- and later 1000/- is was nothearsay evidence, but we think it was hearsaywhen he deposed to what Mwinyipembe had toldhim the accused has told Mwinyipembe to say tohim (Mzee)


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Exceptions The KEA makes provision that under certain

circumstances, oral evidence which is not direct(hearsay) is admissible:

Statements made by persons who cannot be called aswitnesses ( 17-32)

Statements made in special circumstances ( 33, 34)

Statements in documents produced in civil proceedings( 35, 36)

For statements made by persons who cannot becalled as witnesses to be admissible as evidence it is

necessary hat the person who made them is deador cannot be found or has become incapable ofgiven evidence, or is someone whose attendancecannot be procured without such delay or expenseas the court considers unreasonable


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Exceptions In Mohamed Taki v. R [1961] E.A. 206

The court was called upon to take judicial notice offacts relating to natural and artificial division of time andgeographical divisions of the world and public holidays.

A party applied to court to compel attendance of awitness who at that time was in Switzerland. In thecircumstances of the case, the court expressly judiciallynoticed the fact that Switzerland was in Europe and the

proceedings were taking place in Kampala in Ugandaand it would be excessively expensive to import awitness from Switzerland to Kampala.

The CA stated that it might have been better if thelearned magistrate had had evidence before him of theconditions which make section 30 of the UgandaEvidence Ordinance applicable. But he was entitled to

take judicial notice of the facts that Switzerland is inEurope and Kampala is in Uganda ad he seems to havebeen satisfied that the attendance in Kampala of awitness from Switzerland could not be procured withoutan amount of delay or expense which in thecircumstances of the case appeared unreasonable.


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Exceptions Commissioner of Customs and Excise v Shah

Karamshi Panachand and Co [1961] EA 303 In this case the court took judicial notice of the

distance between the Hague and Nairobi andaccepted that it would be unreasonable to bring awitness from Hague to testify in Nairobi.

The court reasoned as to whether in today'sworld of swift air travel, the distance between E-Africa and Europe can still justify dispensing witha witnessessappearance in person


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Exceptions

Thornhill v. Islay Thornhill and Another [1965] EA

268 Quashieldun, and De Lestang, J.A.observed:

the cost and inconvenience of bringing a witnessfrom the United Kingdom would not be great inthese days of rapid and inexpensive air travel. With

great respect, I disagree that air travel in these daysin inexpensive, although I agree that it is rapid

It is no exaggeration to say that to a large number ofpeople the cost of such a journey would beprohibitive and to all but the wealthy cause serious

financial embarrassment and hardship


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Exceptions Statements made by persons who cannot be called

as witnesses are divided into:

Those made as to cause of death

Those made in the course of business

Those against the interest of the maker

Those giving an opinion as to a public right or custom or

matters of general interest

Those relating to the existence of relationship

Those made in a will or deed relating to family affairs

Those relating to any transaction by which a right orcustom in question was created, modified or denied

Those made by several persons expressing feelings orimpressions, and

Those given as evidence in earlier judicial proceedings


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Exceptions Statements made under special circumstances

are divided into:

Entries in books of account

Entries in public records

Statements in maps, charts and plans

Statements in Acts, gazettes, etc

Statements as to law contained in books


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Dying declarations

Provided under 33 (a) of KEA

It is reproduced from the Indian law onadmissibility of a statement by a person as tothe cause of her death

Differs from English law. Dying declarations areadmissible in England only in cases of murderand manslaughter

In EA and India they are not restricted to

murder and manslaughter, and extends to civilcases in which the cause of death of theperson who made the statement comes intoquestion


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Dying declarations In England, a dying declaration is only

admissible as an exception to the hearsay rule.If the person making it was at that time inactual expectation of death

In EA and India such statements are relevant

whether or not they were made under theexpectation of death.

In EA and India such statements, however, mayaffect the weight to be attached to them.

(Dala Mkwayi v. R (1956) 23 EACA 612)


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Dying declarations

R. v. Muyovya Msuma (1939) 6 EACA 128 made

it clear that dying declarations carry less weightin EA than in England

Courts in EA seem to caution on theadmissibility of dying declarations. The absenceof cross-examination is what makes itcautionary the particulars of the violencethat resulted to a death may be violent,confusing etc to prevent accurate observation

Thus in these cases collaboration is highlydesirable


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Dying declarations

In R v. Eligu Odel and Epongu Ewunyu (1943) 10EACA 90, the declarantsstatements on thecause of his death were admitted becausethere was corroborating evidence, whichplaced the two accused Eligu and Emunyu

together earlier that day when they confrontedthe victim when he was singing in the road.

The deceased victim was also known to theperpetrators

These facts made the deceaseds statementmore credible


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Dying declarations Courts in EA have held that corroboration is

necessary before a dying declaration is admitted.

Pius Jasunga Akumu v. R (1954) 21 EACA 331

Corroboration evidence may be purelycircumstantial. R v. Said Abdalla Saidi Mangombe(1945) 12 EACA 67

A witness had seen the deceased being pursued by aman, whom she could not identify, carrying a panga. Thedeceased named the appellant as his assailant.Corroboration was held to lie in the fact that earlier in theday the deceased and the appellant had had a disputeover the ownership of a sheet and had been seen going

off together in the direction of the place where thedeceaseds body was found, the appellant carrying thepanga, a bottle and the sheet and wearing a cap. Laterhe was seen without the cap, bottle or sheet, wet withsweat and with his eyes red


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Dying declarations The weight attached to a dying declaration

depends on various circumstances

1) On whether or not the declarant was really certain ofthe perpetrators identity. (Mdiu Mande aliasMnyambwa Mande v. R (1965) EA 193)

2) Depends upon the circumstances in which it is givenand the effects of the injuries and how they may affectthe victims memory and intellectual power. (Jasungav R (1954) 21 ACA 331), Waugh v. The King [1950] AC203 where statements made by a man who fell into acoma while making it and never recovered were heldas inadmissible

Sarkar (on Evidence, 9thedition, p. 150) posits that it

is not necessary in order to render a dyingstatement admissible that is should be a completeaccount of the attack provided that it is, or mayrationally be assumed to be all the deceasedwished to say about it


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Dying declarations The declaration must be in the actual words of the

deceased victim and if questions are put, both thequestions and the answer must be given (R. v.Mitchell(1892) 17 Cox 503)

Since most of these are leading questions, there isdanger they may be answered without enough

comprehension

Dying declarations may be admitted if they aremade as to any circumstances which resulted inthe deceaseds death (Swami v. Emperor [1939] 1ALL ER 396) statements to be admitted must be

made after the transaction has taken place, thatthe person making it must be at any rate neardeath, that the circumstances can only includethe acts done when and where the death wascaused


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Dying declarations

R v. Kabateleine Nchwamba (1946) 13 EACA

164 The deceased, two days before she had

been burned to death in her house, told theheadman that the accused was threatening

to burn her house because he said she hadcaused the death of his father by witchcraft.

The Appeals Court held that the statementswere a general expression indicating fear orsuspicion but one directly related to theoccasion of death and therefore admissible


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Dying declarations

In Byamungu Rusiliba (1951) 18 EACA 233, the

statements by the deceased that Kagoma(associate of the accused) has once chasedhim with the spear and that the accused andanother person were arranging to kill him wereinadmissible

It seems the court also hesitated to admitstatements made by a murdered woman whotold her friend some 6 weeks before her deaththat the accused asked her to marry him and

to give her money, but she refused to marry himwas irregular (Barugahare and others v. R[1957] EA 149


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Dying declarations In Barugaharethe CA stated:

The statements of the deceased indicating motivewould have been rightly admitted if made after theattack, and perhaps even if made in clear referenceto an imminently expected attack which later tookplace: but we thin that in the present circumstancesthey were neither statements as to the cause ofdeath nor statements as to the circumstances of the

transaction which resulted in the death. In one sensea murder may be said to result from a long-nurturedgrudge, and the source of the grudge may be said tobe a transaction which itself results in the death; butwe emphasize the requirements laid down by the PCthat there must be some proximate relation to the

actual occurrence. whether or not the facts herealleged bear a relation to the murder, there wascertainly no proximate relation. Questions of this kindare questions of degree and to some extent ofimpression but we think the evidence tendered in thiscase went beyond what was permissible


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Dying declarations

Other conditions for dying declarations to be

admissible:1. Only admissible in so far as it would be

admissible if given as sworn evidence

2. The declarant must be competent as a

witness when he made his statement

3. Any statements (hearsay)would be just beinadmissible as it would be if produced by awitness (Idi Kondo v. R (1953) 20 EACA 272)

i d l i


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Dying declaration

It has been decided by courts that in homicide

cases a dying declaration is only admissible ifthe death of the deceased is the subject of thecharge and the cause of this death the subjectof the dying declaration

R v. Abedi Kasanga (1933) 5 EACA 120, the appellanthad been charged with the murder of Sowedi. Bushiriin his dying declaration state that he had beeninstigated by the appellant to shoot Ali and had infact shot Sowedi, mistaking him for Ali. This statementwas held to be inadmissible

R v. Kayanda Msila and others (1943) 10 EACA 117,Rubongisdying declaration who died on the sameoccasion as Mfanye, murders the appellants werecharged, the information on the two murders wereheld inadmissible since it was not Rubongisdeath

which was in question


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Dying declarations

Can a statement made by thedeceased in formerproceedings be admittedunder the sections of the KEAdealing with declarations as tocause of death?

statements may beadmissible under section 34

St t t d i th


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Statements made in theordinary course of business

33(b) KEA A statement by a person who is

dead, or who cannot be found or

who is incapable of givingevidence cannot be procuredwithout an amount of delay orexpense which appear to the court

to be unreasonable, is admissible ifit was made in the ordinary courseof business


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S. 33(b) KEA

Section 33 of the KEA is drafted in awider scope compared to Englishlaw, which excludes statementswhich were not madecontemporaneously with the facts towhich they relate, or statements oftransactions of which the declarant

did not have personal knowledge, orstatements where there was a motiveor interest to misrepresent the facts


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Statements against theinterest of the maker

Statements which are against the pecuniary orproprietary interest of the maker are admissible

Statements which would expose the maker to

criminal prosecution or to a suit for damages(s.33(c) KEA are admissible although they are notin England


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Statements giving opinionas to public rights, etc

Section 33 (d) of the KEA

Statements made by persons whocannot be called as witnesses areadmissible if they give the opinion of theperson making them as to the existenceof the public right or custom or matter ofpublic or general interest, of theexistence of which, if it existed, he wouldhave been likely to have been aware


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Statements as to existenceof relationship

S. 33(e) of the KEA

Statements by persons who cannot

be called as witnesses areadmissible as to the existence ofany relationship by blood, marriageor adoption between persons as to

whose relationship the personmaking the statement had specialmeans of knowledge


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Statements in a will or deedrelating to family affairs

S. 33(f) of KEA

Statements in documents


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Statements in documentsrelating to certain

transactionsS. 33(g) of KEA


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Statements made by severalpersons expressing feelings

S. 33(h) of the KEA

E id i i J di i l


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Evidence given in Judicialproceedings

Evidence given in a judicialproceeding is admissible for thepurpose of proving, in a subsequent

judicial proceeding, or at a laterstage of the same proceeding, thefacts which it states, when the

witness who gave it is dead orcannot be found or is incapable ofgiving evidence

St t t i h t


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Statements in maps, chartsand plans

S. 39 KEA


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Statements of fact containedin laws and official gazattes

S. 40 of KEA

St t t t l


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Statements as to lawcontained in books

S. 41 KEA

In Hakam Bibi v. Mistry Fateh Mohamed

(1955) 28 KLR 91, the issue was whetherbodies of law such as Islamic law andHindu law are foreign law

Cram Ag. J stated a contract would berecognized by Kenyan courts

Statements s 41 of KEA


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Statements s. 41 of KEA

However in Hirji Devchand Ramji v.

A.G. of Kenya (1956) 23 EACA 20 inwhich the Hindu law of adoptionwas the issue, the court stated:

. Referring to the passage in MullasPrinciples of Hindu law . strictlyspeaking this quotation is inadmissiblefor the book is not a government

publication, but cases are cited bythe author as his authority and thesewould be admissible under section 38of the Indian Evidence Act.


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Statements in documentsproduced in civil proceedings The KEA follows sections 1 and 2 of the

Evidence Act of the United Kingdom, 1938

Section 35 and 36 KEA

Under these provisions, in any civil proceedings,where direct oral evidence of a fact would beadmissible, any statement made in adocument tending to establish that fact isadmissible on production of the originaldocument, provided certain conditions aresatisfied

Statements in civil


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Statements in civilproceedings Conditions:

The maker of the statement musthave a personal knowledge of thematters concerned or have made thestatement in performance of a duty torecord information supplied by aperson who had, or might reasonablybe supposed to have had, personal

knowledge of the matters concernedThe maker of the statement must be

called as a witness, unless he is deador cannot be found or is incapable of

giving evidence


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Documents

BLW 2101 Hearsay Evidence Notes