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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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