Hearsay evidence Tanzania.

HEARSAY EVIDENCE

Hearsay evidence falls under the category or oral/parole evidence. This is defined under the American federal Rule of Evidence 801(c) as a statement, other than one made by the declarant, offered in evidence to prove the truth of the matter asserted. 

Murphy does not directly define hearsay, but he describes the same as follows “Evidence from any witness which consists of what another person stated (whether verbally, in writing, or by any other method of assertion such as gesture) on any prior occasion, is inadmissible, if its only relevant purpose is to prove that any fact so stated by that person on that prior occasion is true. Such a statement may, however be admitted for any relevant purpose other than proving the truth of the facts stated in it. 

The general rule against hearsay is that a statement made by a person, not called as a witness, which is offered in evidence to prove the truth of the facts contained in the statement is hearsay and is not admissible. If the statement is however offered in evidence to prove that it was in fact made, and not to prove the facts contained therein, it is admissible. 

In the case of Subramaniam v The DPP (1956) WLR 965

The appellant was charged and convicted of being in possession of fire arms without a lawful excuse. In his defence, he maintained that he was acting under duress occasioned by threats uttered to him by some terrorist. The trial judge overruled him when he attempted to state what the terrorists had told him. He was convicted and he appealed. 

The appeal court held that: “evidence made of a statement to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement. 

Illustrations of the general rule relating to hearsay: 

The question is whether A defamed Doctor B by calling him incompetent. Witness C may be called to testify that he heard A called B incompetent. The purpose of the witness is not to establish the truth of the statement, i.e. that Doctor B is incompetent, but to prove that it was made. Only A may be called as a witness to prove the truth of the facts contained in the statement that he made. 

If X says that he saw Y beat up Z with a stick on his head, that is direct evidence: - X perceived it. If however, X says that he was told by Z that Y beat him on the head with a stick, that could be hearsay, if tendered to the court to prove that Y did beat up Z. If however offered merely to prove that the statement was made, that is not hearsay. 

Note that these illustrations relate to the general rule, and there are exceptions to the same

S. 61 and 62 of the TEA contain provisions on oral evidence. S.62 specifically states that oral evidence must in all cases be direct, that is to say:

() if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it

(b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it

(c) if it refers to a fact which could be perceived by any other sense, or in any other manner, it must be the evidence of a witness who says he so perceived it

(d) if it refers to an opinion, or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion or as the case may be, who holds it on those grounds

If such oral evidence is indirect, it becomes hearsay, and it is generally inadmissible. 

Hearsay evidence is inadmissible for a number of reasons:-

(a) the evidence is not given on oath (the evidence is given by another person on behalf of the person who perceived it)

(b) The evidence cannot be tested by cross examination

(c) The evidence presupposes a better testimony

(d) The evidence is weak as it is subject to distortion. 

In Njunga v R (1965) EA 773

The appellant, was apprehended by the police on the information of an informer. The police found a simi under the driver’s seat. The appellant was charged with being armed with the intent to commit a felony. Witnesses gave evidence in the trial court to the effect that they had been told by a police informer that there was a plot between the appellant and others to commit an armed robbery. The informer was not called to give evidence and his name was not revealed. This evidence was admitted in the trial court, and the appellant convicted. Upon appeal, it was held that: 

“The knowledge which the court below had of this felonious enterprise was derived from what a sergeant of police had told the court, that an un named uncalled, unsworn individual had told him. Without this hearsay evidence, the court below very clearly would have found it difficult , if not impossible, to have determined whether the appellant has the intent to commit a felony, and if so, what felony.” The Court therefore concluded that the evidence had been wrongly admitted and quashed the conviction.

Purpose of the witnesses statement: not to prove that the statement was made, but to prove that the statement was true. 

Exceptions to the hearsay rule

1. Statements by persons who cannot be called as witnesses (s. 34)

a. Dying declarations

b. Statements made in the ordinary course of business

c. Statements made in the discharge of professional duty

d. Statements against the interest of the maker

e. Statements of opinion on public right, custom, or matters of general interest

f. Statements relating to the existence of a relationship

g. Statements in a will or a deed , relating to family affairs

h. Admissibility of certain trade/business

2. Admissibility of certain Trade or business (S. 34A)

3. Proof by Written Statements in Criminal Proceedings  34B

4. Proof by written Statement in Civil Proceedings 34C

5. Evidence given in previous judicial proceedings S. 35

6. Statements made under special circumstances (S. 36 – 40)

a. Entries in books of account

b. Entries in public records

c. Statements in maps, charts and plans

d. Statements of facts contained in laws, gazettes, etc

e. Statements as to law contained in books

1. Statements by persons who cannot be called as witnesses

In order for statements made persons who cannot be called as witnesses to be admissible, the person must be dead, unknown, cannot be found, cannot be summoned to the court due to diplomatic immunity or other privilege, can be summoned but refuses to voluntarily appear in court as a witness, has become incapable of giving evidence, cannot appear in court without unreasonable delay or expense 

(a) Dying Declarations

S. 34 (a) provides that whenever the cause of death is in issue in a civil or criminal case, any statement made by the deceased as to the cause of her death or the circumstances of the transaction or event resulting in the death is admissible. 

Some jurisdictions such as the English system require that the statement has to be made by the deceased who is in imminent (about to happen) expectation of death, because then they are not likely to tell lies. The TEA however provides that such statements are admissible whether the person who made them was or was not at the time they were made, under the expectation of death.  

In order for dying declarations to be admissible in court, certain conditions have to be met:-

(a)  The statement must relate to the cause or circumstances leading to the death of the maker and not of any other person. In Mohamed Warsama v. R (1956) 23 EACA 576, the deceased had made a series of dying declaration, and had in them stated the cause of death of another deceased. The court held that these were not admissible as related to the other deceased, as a dying declaration has to relate to the cause or circumstances leading to the death of the deceased and not any other person. 

(b) The statement must be proximate (close) to the death

In Antonio Barugahara & Others v R (1957) EA 147, a witness had given evidence that the deceased woman has told 6 weeks before her death that the 1st accused had asked the deceased to marry him, and give him money to pay his taxes. She had refused to yield, and was six weeks later was found dead. The Court of appeal held that the facts alleged were not proximately related to her death, and the circumstances were not those of the transaction resulting in her death. 

(c) The statement may be made before the cause of death has arisen or before the deceased has any reason to anticipate being killed. 

In R v. Kabateleine s/o Nchwamba (1946) 13 EACA 164, Two days before the deceased was burned to death in her house, she had told the headman that the accused was threatening to burn her house because, as he alleged, she had cause the death of his father by witchcraft. The Court of Appeal held that this was not a general expression indicating fear or suspicion, but one directly related to the occasion of death and was therefore admissible. 

(d) The statement must be complete

In Waugh v. r (1950) AC 263, The deceased fell into a terminal coma while making a dying declaration. The incomplete statement was held to be inadmissible. 

In R v. Charles Daki s/o Daki (1960) EA 34, the deceased was admitted into the hospital suffering from gunshot wounds. When asked who shot him, he said “Charles Daki has killed me. He shot me with a gun. I saw him with a gun. He was on a motorcycle. A friend of mine had visited me and I had gone to the garage with him…” At this point, the doctor interrupted on the ground that the patient was unfit to continue to talking. The deceased subsequently died. The incomplete statement was held to be inadmissible. Relying on the decision in the Waugh case, the Court stated that “it is true that [in Waugh’s Case] the deceased fell unconscious having begun but not completed a sentence. But I think the principle applies equally well where, although there was apparently no unfinished sentence, it is not established that the declarant said all he wished or intended to say before the doctor intervened, telling the police to ‘leave him alone.’”                 

(e) While as a matter or law corroboration (confirmation or support by additional evidence) is not required, it is as a matter of practice required.       

If there are circumstances which show that the deceased could not have been mistaken in her identification, then a conviction arising from an uncorroborated dying declaration may stand. 

In R v Eligu s/o Odel and Epongu s/o Ewunyu (1943) 10 EACA 90, The deceased had stated in a dying declaration that the two accused had attached him. In the case of Eligu there was corroboration. In the case of Epongu, the position was as follows: he had earlier in the day, together with Eligu, arrested the deceased, bound him, taken him some distance, then unbound him. The court of appeal held that:

it would not be reasonable to assume that a stranger to the earlier events had identified himself with a later attack on the deceased. Besides, there is the point that the deceased in his identification of his assailant would be less likely to be mistaken than if he has been suddenly set upon by persons with whom he was unacquainted. Here, not only were the accused known to the deceased, but he had been in their company … earlier in the same evening, this fact making the deceased’s statement more credible...it may be said that the other evidence pointed in the same direction as the deceased’s statement.”

 Do you agree with the court

 Do you think there was corroboration by circumstantial evidence?

The above position however seems to be the exception rather than the rule when it comes to corroboration of dying declarations. In Pius Jasunga s/o akumu v R, (1954) 21 EACA 331, the EACA stated that:

We have examined the decisions of this court on the subject of dying declarations since 1935 and we have unable to find a single case where a conviction has been upheld which was based upon a dying declaration without satisfactory corroboration, unless as in Epongu’s case where there was evidence of circumstances going to show that the deceased could not have been mistaken in his identification of the accused… Although it is not a rule of law that in order to support a conviction a dying declaration must be corroborated, generally speaking, it is very unsafe to base a conviction solely on the dying declaration of the accused. 

(b) Statements made in the ordinary course of business(S. 34b)

Remember that the general rule in these situations is that the statements we are talking about must have been made by a person who is dead, unknown, cannot be found, cannot be summoned to the court due to diplomatic immunity or other privilege, can be summoned but refuses to voluntarily appear in court as a witness, has become incapable of giving evidence, cannot appear in court without unreasonable delay or expense 

S. 34(b) requires the following:

 That the statement sought to be admitted must relate to a business or profession

 The person who made the statement must have had a duty to do so

 The statement must have been made during the ordinary course of business. 

The statement should not have been made with a view to instituting the case in question. Thus, where the accused was charged with having stolen certain goods which he should have delivered to a certain firm, a statement by the firm showing a shortage in the goods received was held to be inadmissible since it appeared that the special report was written with a view to present prosecution (See R. v Magandazi and 4 others (1914) 2 ULR 108)

Such statements include entries in the books or records of the business, acknowledgements of receipts monies, goods, securities or other property, or the date of a letter or other document usually written or signed by the person who cannot be called as a witness. 

In the Commissioner of Customs v. S K Panachard, (1961) EA 303, it was held that the interval maintained in making entries must be consistent. 

(c) Statements against the interest of the maker

Statements made by persons who cannot be called as witnesses, and which are against the pecuniary (financial) or proprietary (property) interest of the maker are admissible. Additionally, statements which would expose the maker to criminal prosecution or to a suit for damages are also admissible. 

For instance, a statement by a landlord who was dead that there was a tenant on his land is a statement against his proprietary interest.

In Sebastian Diaz v. R (1927) ULR 214 however, the court refused to admit a statement made by a deceased clerk, admitting that he had falsified some entries, in a case where the accused was charged with making false entries during employment. The prosecution intended to adduce this statement to prove the guilt of the accused. 

(d) Statements giving opinion as to public right or custom or a matter of public or general interest

In order for statements to be admissible under this section, certain criteria must be met:

 The statement must be an opinion of a person who cannot be called as a witness because of any of the reasons stated in S. 34

 The statement must have been made before the subject matter of the controversy was contemplated

 The maker of the statement should have had the means of the knowledge of the existence of the custom or right in question

 Where the statement relates to a right, it must be a public as opposed to a private right. 

E.g. the statement by a deceased headman to the effect that a certain road is a public road would be admissible under this section. 

(e) Statements relating to the existence of a relationship

Pre conditions:

 The statement must be made by a person who cannot be called as a witness

 The statement must relate to the existence of a relationship by blood, marriage or adoption between certain persons

 The person making the statement must have had special means of knowledge as to the existence of the relationship. 

 The statement should have been made before the controversy arose 

(f) Statements relating to family affairs 

Statements by persons who cannot be called as witnesses are admissible when they relate to any relationship by blood, marriage or adoption between deceased persons, when such statements are made in any will or deed relating to the affairs of the family of the deceased or in any pedigree (ancestry/family tree),or on a tombstone, family portrait or other thing on which such statements are made. Such statements must have been made before the dispute in question arose. 

Differences between S. 34 (e) and (f) 

 Under (e), the existence of a relationship of any living or dead person can be proved whereas under (f), only a relationship between deceased persons can be proved.

 Under (e) the maker of the statement should have special means of knowledge as to the existence of the relationship whereas under (f) there is no such requirement

 Statements under (e) may be written or verbal, but statements under (f) must be written

 Clause (e) relates to declarations by the person who cannot be found while clause (f) relates to evidence of things such as wills, tombstones, etc.  

(g) Statements in documents relating to certain specific transactions

Statements by persons who cannot be called as witnesses, which are contained in any deed, will or other document, which relate to any transaction by which a right or custom in question was created, claimed, modified, recognized, asserted or denied are admissible. 

This section applies only to written statements. 

E.g. Where the question is whether the deceased gave A a certain gift, a statement in the will of the deceased to the effect that he did so is admissible. 

(h) Statements made by several persons and expressing feelings

Statements by persons who cannot be called as witnesses, which were made by a number of persons, expressing feelings or impressions on their part relevant to the matter in question are admissible. Such statements are proved by evidence of witnesses to the expression of feelings by the several persons. 

E.g. A sues B for a libel expressed in a painted caricature (a representation, especially pictorial or literary, in which the subject's distinctive features or peculiarities are deliberately exaggerated to produce a comic or grotesque effect) exposed in a shop window.  The issue is the similarity of the caricature and whether it is libelous. The remarks of a crowd of spectators on these points may be proved. 

2. Admissibility of Certain Trade or Business

S. 34A applies to criminal cases only, where the maker of certain statements cannot be called as a witness. 

The statement to be admitted herein must be written

The statements must have been made either as a 

 Memorandum or record of the act/transaction/ occurrence/event

 A record relating to any trade or business, and made in the regular course of business, where is it the practice to record such a transaction/occurrence/event when it takes place or within a reasonable time after.

3. Proof of written statements in criminal proceedings 

S 34B applies to admissibility of affidavits and other similar declarations in criminal proceedings. Affidavits are admissible under that section if they fulfill the following conditions:

 The maker of the statements is not called as a witness, is dead, unfit to attend court by reason of mental or physical condition, is over seas, it is not reasonably practicable to call him as a witness, he cannot be found, he is not identifiable or by some operation of the law he cannot attend. 

 The statement is, or purports to be signed by the person who made it

 The statement contains a declaration to the effect that it is true to the best of the maker’s knowledge and belief, and that the statement was made knowing that if it were tendered in evidence, the maker would be liable to prosecution for perjury if he willfully lied. 

 Copies of the statement are served by the party tendering it to all the other parties before the proceedings

 No party objects to its being tendered in evidence within 10 days

 If the statement is made by a person who cannot read it, it is read to him before he signs it and the person who read it so declares.  

Notwithstanding the above provisions, the party tendering the statements may call the person to give evidence, and the court may also do so on its own motion, if the person can be found.

Before the statement is admitted as evidence, it must be read aloud in court unless the court otherwise directs, and the court may also direct that an account be given of portions not read aloud. 

Any documents or objects referred to in the statement as exhibits and identifies shall be treated as an exhibit and identified in court. 

There is however a proviso that such a statement cannot corroborate evidence given by the maker of the statement. 

4. Proof of written statements in civil proceedings

S. 34 C admits written evidence instead of the attendance of the maker of the statement, especially where the maker is dead, cannot be found, is unfit to attend court by reason of mental or physical condition, is overseas, it is not reasonably practicable to secure his attendance, or all efforts to find him have failed. It must be proved that such a statement would be admissible had the maker been available to give evidence in court. 

Essentials

1. The maker must have had personal knowledge of the matter dealt with by the statement

2. if the document forms part of a continuous record, and the subject matter in the document was not within the maker’s knowledge, it must be shown that the male had a duty to make such a record and that he was supplied with information by a person who had/or is reasonably believed to have had personal knowledge of the matter

3. Statement must have been made before the subject matter in dispute arose

4. The original document need not be tendered; a certified copy would suffice

5. A statement in a document shall be regarded as having been made by a certain person if:

i. She made/prepared the whole document

ii. She wrote, made or reproduced by her own hand some material part of the document

iii. She initiated some material part of the document, or otherwise made a recognition in writing that she was responsible for the document/part of it

6. The court reserves the right to determine the admissibility of any document under this section (considers accuracy, authenticity). The adverse party has the duty of raising doubts as to the authenticity of the document

7. The court has the discretion to determine whether or not a person if fit to attend trial

5. Evidence given in previous judicial proceedings S. 35

Evidence given by a witness in previous judicial proceeding is admissible in subsequent proceedings, or at a later stage of the same proceeding (e.g. appeal) where the witness is dead, cannot be found, is incapable of giving evidence, is kept out of the way by the adverse party, or his presence cannot be obtained without unreasonable delay/expense. In Ndola v. R (1926) (10) KLR 11, it was held that the phrase cannot be found referred to the time when the witness was sought to attend court and not to the state of affairs at an earlier period

Such evidence is only admissible in a subsequent proceeding if the following conditions are met:

a. the proceeding is between the same parties or their representatives in interest. E.g. A accuses B of embezzlement. B is acquitted, and A thereby institutes malicious prosecution proceedings. The parties in the subsequent case will be the same. 

b. The adverse party in the previous proceeding had the right and opportunity to x-examine the witness

c. The questions in issue were substantially the same in the first as in the second proceeding

The phrase “Evidence given in judicial proceeding” denotes that it must be proved that the witness was duly sworn in some judicial proceeding; the party against whom the evidence was offered was legally bound to submit to the authority to whom the evidence was offered; the adverse party had a right of cross examination. 

6. Statements made under special circumstances (S. 36 – 40)

Entries in books of account S. 36

Read Act

-Must be books of account regularly kept

-such evidence requires corroboration

Entries in public records

Read Act

What is a public record? Manji Suleimani Ladha v. R.G. Patel (1960) EA 38: The court laid down the following criteria, that a public record must be intended for the use of the public or be available for public inspection; and must be intended to be a permanent record; must be a record of fact not opinion.

The phrase “any other person in performance of a duty especially enjoined by the law of the country” was interpreted in the case of Dhanji Hirji v. R (1966) EA 246, whereby the court observed that  “any other person means any person, not a public servant, who finds himself under a specific duty to maintain or make entries in any record of a public or official nature…we do not think that it includes members of the general public completing forms necessary for their individual purposes, whether or not those forms will eventually form part of the archives of any government department”

Statements in maps, charts and plans

Read Act

Statements of facts contained in laws, gazettes, etc

Read Act

Statements as to law contained in books

Read Act

Such statements on foreign law must be contained in books printed or published under the authority of the government concerned

This provides the means by which foreign law can be proved. The Court in Hakam v. Mohamed, (1955) 28 KLR 91, made the decision that bodies of law such as Islamic and Hindu law are not foreign law.