Hearsay evidence has not been defined in the Evidence Act but simply put it is the repetition by a person in court, orally or in writing, of a statement made by a person out of court.
According to Blacklaws dictionary, hearsay is defined as: a term applied to that species of testimony given by a witness who relates not what he knows personally but what others have told him or what he has heard said by others. The value of hearsay evidence does not rely on the credibility of the witness but on the competence of other people as the witness only reports what they heard other people say.
Justice De Silva defined hearsay evidence as:
A statement made by a person not called as a witness which is offered in evidence to prove the truth of the fact contained in the statement is hearsay and it is not admissible. If, however the statement is offered in evidence, not to prove the truth of the facts contained in the statement but only to prove that the statement was in fact made it is not hearsay and it is admissible.
Bryan A. Garner gives the following definition:
A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay evidence is testimony in court of a statement made out of court, the statement being offered as an assertion to show the truth of the matter therein, and thus resting for its value upon the credibility of the out of court asserter. Evidence not proceeding from the personal knowledge of the witnesses, but from the mere repetition of what he has heard others say.
Trial of Sir Walter Raleigh.An infamous proceeding traditionally credited with launching the development of the Hearsay Rule and the Confrontation Clause. Raleigh was tried for treason, accused of engaging in a plot to remove James I from the throne and place Lady Arabella Stuart in his place. The primary witness against Raleigh, Cobham, had been interrogated in the Tower of London and swore a confession that he later recanted. Raleigh asked the court repeatedly to bring Cobham to him during trial that he may cross-examine him. His request was denied and though his life was on the line, all of Cobhams statements were allowed in against Raleigh without Raleigh being given a chance to question him. The courts admission of testimony against Mr. Raleigh without the production of the witnesses behind that testimony produced an uproar that many attribute to the creation of the Confrontation Clause and the Hearsay Rule.
The general rule is that hearsay evidence is inadmissible. This is the rule against hearsay. It is only admissible where certain exceptions are to be applied. Situations where there is an apparent double hearsay, are rarely admitted by the courts.
This rule, developed under the common law, was fully established as early as the 19th century. The rule applies to both oral and documentary evidence and can be found in civil and criminal law.
Section 63(1) of the Evidence Act states that: Oral evidence must in all cases be direct evidence. This therefore excludes non-direct oral evidence from being admissible in court proceedings but only when a statement is made to prove that the contents (of the statement) are true. Where non-direct evidence, in the form of a statement, is adduced to prove that the statement was made or to prove the state of mind of the maker this will be original evidence and will therefore be admissible.
JUSTIFICATIONS FOR THE RULE AGAINST HEARSAY.
Courts tend not to consider hearsay evidence because;
The lack of an opportunity for the cross-examination of the maker of the original statement as it aids in ensuring that the witness recollection of what they perceived is true, unambiguous and accurate.
Hearsay evidence would be easy to invent. In Kearley, the police could have easily manufactured the evidence of the telephone calls.
Misinterpretation. In cases of multiple hearsay, it is very likely that the reporter of the words of another will have misinterpreted or misheard what he heard.
The body language and general demeanour of the original source cant be observed to assess the testimonys weight.
It would be in the promotion of justice to allow the accused to oppose the witness making accusations against him.
Hearsay evidence can be in the form of an express or an implied assertion.
Express assertions, intended to be made by the maker, are inadmissible.
Subramanian v. DPP: The accused appealed his conviction of being in possession of a firearm without due cause. He had sought to adduce evidence -the statements of terrorists that had threatened him- to show the reason behind his being in possession of the firearm. On appeal to the Privy Council it was held that the statements by the terrorists were original evidence as they justified his actions.
Tenywa v Uganda (1967) EA 102(U) :The police arrested P on being informed that he was in possession of a stolen bicycle. On this account, he was charged and convicted of the same. On close examination, the police admitted to evidence that the bicycle had a forged number plate; therefore, the one on it was not the original one. This was hearsay as in essence, there was no one who came forward to claim that that was their bicycle was originally theirs and that the number plate was changed. Therefore, the claim that the bicycle number plate was changed was mere hearsay.
Junga v R (1952) AC 480 (PC):In this case, the appellant was arraigned in court on charges; and convicted; of possessing a gun that was to be used to commit a felony. The police were tipped by an informant; who did not appear to testify during the proceedings. The conviction was quashed by the Court of Appeal on grounds that the trial court had admitted hearsay evidence; which could not be corroborated as the informant; whose identity was withheld; could not testify and give first-hand information of his knowledge about the case.
Myers v DPP 1964 2 All ER 881:In this case, the appellant was charged and convicted with being in possession of a stolen motor vehicle. One of the witnesses during the trial stage, the head of the records department from which the car was stolen from, laid out to the court that before a car was brought into the market; it had to bear three unique serial numbers- and all this was in the companys records in the form of a microfilm. The House of Lords admitted that the previous courts hearing the case had heavily relied upon this hearsay evidence in the form of a microfilm. This is because the maker of the statements was not the one who had produced the microfilm. Furthermore, he could not prove that the three numbers that had been born on the chassis and engine of the car are the exact ones that were entered into record.
Implied assertions, inherent in a statement which were unintended by the maker, are also inadmissible.
Parker B in Wright v Doe De Tatham expounded on this: Proof of a particular fact, which is not itself a matter in issue, but which is relatively only as implying a statement or opinion of a 3rd person on the matter in issue, is inadmissible in all cases where such a statement or opinion not on oath would be of itself admissible.
R v Kearley: The appellant was charged with being found in possession of and with intent to supply controlled drugs. The prosecution sought to adduce evidence of intercepted phone calls requesting for the supply of drugs. The House of Lords held that evidence of the intercepted calls was hearsay evidence and therefore inadmissible. The relevance of the conversations lay solely in the implied assertion that the accused was a drug supplier. Since an express assertion to the same effect would have been inadmissible, the implied assertion had to be excluded.
CreationHearsay as per The Evidence Act cap. 80 is a testimony given in court by a person other than the one who perceived it.
Section 63 expressly states that oral evidence should be direct in order to be admissible in court.
Exceptions to this rule against hearsay are under:Sections 17-24, with regard to formal and informal submissions.
Sections 25-52, with regards to confessions.
Section 33, which refers to statements made by someone who can't be called as a witness. This includes the dead, a person who can't be found or is incapable of giving evidence or can't be procured without incurring delay or expense. These statements are admissible when made.
Section 34, which elaborates on the admissibility of the evidence given in previous judicial proceedings in cases where the parties in both cases are the same, the adverse party had the right to cross-examine the other and where the questions in issue in both cases were substantially the same.
Sections 35-36 on the admissibility of statements in documents produced in civil proceedings.
Admissibility of statements made under special circumstances such as under
Section 37- Entries in books of account.
Section 38- Entries in public records made by public servants.
Section 39- Statements and representations of relevant facts made in public maps or charts authorized by any government in the Commonwealth.
Section 40- Statements of fact contained in laws and official gazettes.
Section 41 Statements as to law contained in books.
Certified documents are admissible in court under:
Section 77 where they are in form of reports by government analysts, medical practitioner, any ballistics experts or under section
Section 78 given by an officer appointed by order of the DPP for photographic evidence
EXCEPTIONS TO THE RULE AGAINST HEARSAY
There are certain circumstances when hearsay evidence may be admissible due to its high probative value in determination of a case.
Overall, there are two broad areas within which several sub tenets of exceptions to rule against hearsay may crop up from, these include;
Where a statute expressly makes some type of hearsay evidence admissible.
Common law exceptions to hearsay rule such as res gestae.
EVIDENCE OF PERSONS WHO CANNOT BE CALLLED AS WITNESSES
There are instances where the witness is not available, either because of death or of the fact that the availing the witness to court would be unreasonable or complicated.
In case of Thornhill v Thornhill, the court held that the cost of bringing in the witness from the UK was not great though consideration had to be given to whether it would be fair to the petitioner, in terms of justice and funds. No request to have the witness examined orally had been made and an affidavit of his statement would be acceptable. The test for cost is subjective - according to each case.
The courts interpretation of a witness who cannot be found was subjected to the time at which the witness was required at trial. Efforts that failed in getting the witness before the time of trial are not relevant to classify a witness as one who cannot be found as long as they may be present at the time of the trial without delay.
Persons who cannot be procured
Such persons may not be summoned due to security of diplomatic immunity, in this case the court has jurisdiction.
The maker is not within the jurisdiction of the court and cannot therefore be summoned, and has also refused to appear voluntarily.
STATEMENTS RELATING TO DEATH [S. 33(A)]Declarations made by a person of the cause of their death or of the circumstances of the transaction that led to the death are admissible where the cause of death comes into question (is a fact in issue). This person must be dead for the exception to apply. The maker of the statement must not have been under expectation of death at the time the declaration was made but the statement must be about himself and not any other person. The victim must have been under settled hopeless expectation of death when they ma...
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