Rule Against Hearsay

RULE AGAINST HEARSAY
By Duncan Otieno 'Nairobi University'(Law School)
Hearsay refers to testimony given in court by a person other than the one who perceived it. As a general rule hearsay is inadmissible. For you start from the premise that reporting in court what you heard another person say is not going to be admitted in court as evidence. And this draws from section 63 of the Evidence Act, which explicitly provides that oral evidence must be direct. So you are not allowed to go to court to say this is what another person said. Oral evidence must be direct. And when you are dealing with documents it is going to be required that the author of the document presents that document in court. And the reason that we are saying that the author of the document should come to court is so that if you want to cross-examine them you have the opportunity to cross-examine them.

The rule against hearsay is stated as follows: ”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”- Justice De Silva

So essentially then what determines whether hearsay is hearsay or not is going to be pegged around the purpose for which the statement is given. If you are giving the statement to prove the truth of the contents of the statement, you are giving the statement made by another person seeking to get people to believe that which is contained in the statement, that is hearsay. But on the other hand if you state what another person said, not to prove the truth but to establish that those people actually made the statement, that is not hearsay. Because essentially then what you are doing is just reporting what another person said and you did perceive of what that other person said because you heard them. Is this clear?

When you are using the statement to prove that the statement was made, here you are attesting to something that you perceived of because you heard it had taken place. But where you are giving a statement to prove the truth of what was contained in the statement which somebody else had perceived of, that is hearsay. So for instance if a person comes and says, James told me Peter stole the till from the bank. If you are trying to prove the fact that Peter stole from the bank then you can see there that you will not have direct perception of what happened. If in fact you did hear James say that Peter stole, you perceived of that fact because you did hear James say that Peter stole. Is that clear?

The case that you should read that concerns this rule of hearsay is the case of Subramanium v Public Prosecutor (1956) WLR 965. And the facts of this case were as follows: The appellant was charged and convicted of being in possession of firearms without lawful excuse. In his defence, he asserted that he was acting under duress in consequence or a result of threats uttered to him by Malayan terrorists. When he attempted to state the contents of the threats, he was overruled by the judge. He appealed against conviction arguing that the judge should actually have listened to what the import of the threat was. And of course the judge would have argued that if he was allowed to say what the terrorists had told him that would be hearsay. The court of appeal held that the conviction had to be quashed because what the terrorists told the appellant should have been admitted as original or direct evidence. It would have shed light on subsequent actions of the appellant.

So essentially here what the court is saying is that the appellant should have been allowed to utter the threat because they would not have been threatening-may be he was told if you don’t fire the firearm we will kill your mother. So the fact that the statement was uttered is one thing, but the truth of what was in the statement is another thing. Whether the terrorists had the capacity to kill his mother or whatever else they threatened to do is not what we are seeking to hear. What we are seeking to find out is whether a reasonable person would have behaved in the same way as the appellant did in the circumstances. And you should note in this case the statement I was reading to you on what is hearsay and what is not hearsay was stated. In the judgment of Justice De Silva at page 959 to 970. That is where that statement that we are talking about, what is and what is not hearsay is stated by this particular judge:

”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”

The other case that we should look at getting to what is hearsay is the case of Myers v DPP 1964 2 All ER 881. This is a case you must read. The appellant in this case was charged and convicted of receiving a stolen motor vehicle. He was in the business of buying wrecked motor vehicles for repair and resale. The chief prosecution witness was the person in charge of the records department of the relevant motor vehicle factory. He testified that every time that a car was manufactured a workman would note down the engine number and the chassis number of the car amongst other details and these would be marked on some card. He also testified that the cylinder head number would be indelibly struck on the cylinder head block so as to be inerasable. The card would then be microfilmed and stored. At the trial the microfilms were produced on oath by the witness and schedules were prepared from this microfilm. The schedules showed that the cylinder block numbers of the car in question belonged to the car allegedly stolen. The appellant was convicted on the basis of this evidence. The court of appeal affirmed the conviction and the appellant appealed to the House of Lords. The House of Lords held that the trial court and the court of appeal improperly admitted hearsay evidence in the form of the microfilm and Lord Reid at page 884 stated: “The witness would only say that a record made by someone else showed that if the record was correctly made a car had left the workshop bearing three particular numbers. He could not prove that the record was correct or the numbers which it contained were in fact the numbers on the car when it was made.”

Do you see the argument here? That essentially the basis of the microfilm was not something that the witness could testify to because he did not put in the particular entry. He did not actually author the document. Remember we said by dint of section 63 of the Evidence Act, the person that authors the document should produce that document. So here the vehicle had left the workshop with some numbers. Those had now been reduced into microfilm and you have a third person seeking to produce that as evidence. And essentially what the court is saying here is that the only thing the witness can say is that some record had been made of a car that left with some numbers. But he could not actually vouch for the veracity of the truth of what was contained in those documents. And for that reason, that was hearsay. This is why we are saying the House of Lords said the trial court and the court of appeal had improperly admitted hearsay evidence. And because this became a bit technical, Lord Reid ends his statement by saying:

”This is a highly technical point but the law regarding hearsay evidence is technical and I would say absurdly technical”

The other case that it would be a good thing to look at just to illustrate how hearsay presents itself, is the case of Patel v Comptroller of Customs [1965] 3 All ER 593. The appellant here imported from Singapore into Fiji some coriander seeds shipped in bags. He correctly engrossed (filled) the customs import entry form and on investigation at arrival five bags of what he had imported were found to be contained in within another outer bag. So essentially here you have double bagging. The outer bag of these five bags was marked with the appellant’s trade name but it had marked on it “Produce of Morocco”. In the important entry form the appellant had filled that the coriander was a product of India. So in respect of the five bags that had “Produce of Morocco”, the appellant was charged and convicted in making a false declaration in a customs import form, on a customs import entry. And we are saying that he had stated that the seed originated from India when in fact it originated from Morocco.

On appeal, it was held that the evidence of the writing on the bag was inadmissible. It was hearsay. And this was because the court could not ascertain that in essence the coriander seed had actually come from morocco even though the bags were marked “Produce of Morocco”. There were actually saying nobody knew who and when those markings on the bags, Produce of Morocco, were made.  And essentially then nobody could speak to them testifying to the fact that the particular coriander seed had originated from Morocco.  So they could not be the basis of conviction for making a false entry because the person who wrote them could not be called to vouch for the truth.

The other case that would illustrate the same point is Junga v R (1952) AC 480 (PC). The accused was charged and convicted with the offence of being armed with the intent to commit a felony. The police witness gave evidence at the trial, saying that they had been told by a police informer of the alleged attempted offence. The informer was not called to give evidence and his identify was not revealed. The accused was convicted. On appeal it was held that the trial magistrate had before him hearsay evidence of a very damaging kind. Without the hearsay evidence the court below could not have found the necessary intent to commit a felony and that being the case the Court of Appeal allowed the appeal against conviction. Given that here was hearsay evidence, you didn’t call the informer who would have actually given first hand knowledge of the fact that led to the conviction of this person. And that being the case, the Court of Appeal says that in all fairness the conviction should be quashed.

Another case is the case of Tenywa v Uganda (1967) EA 102(U). The accused was accused of having stolen a bicycle. The bicycle was seized by police officers acting on this information. On examination the bicycle was found to have a forged number plate. The accused was convicted of the offence but appealed and on appeal it was held that the police report from Kampala suggesting that the original number on the bicycle was altered was hearsay. It should not have been admitted. Because essentially there was nobody to say this was the number. When you say there was a fake number on the bicycle you are basically saying that it is not the number that was on it, so you should have a person to testify to what was actually the original number. But just to say that it has been changed, even saying that what has been found is what was. Because essentially the person that marked the number on the bicycle was not called to give evidence.

The learned trial magistrate was wrong in law to have admitted in evidence the report alleged to have been obtained from Kampala, which suggested that the original number of the (stolen) bicycle had been altered.  That piece of evidence was hearsay and should not have been admitted… unless the expert who had examined the bicycle had testified before the court and been cross-examined on the point as to how he arrived at his conclusion.

Over and above those cases you should also look at the cases of

Magoti s/o Matofali v R (1953) EACA 232.

“A plan of the locus … was made and produced in evidence by a police corporal.  Various points on the plan are marked with letters and it bears a legend showing what these points represent… as to what each point represented he merely said ‘I got the information from Antonia, (P.W. 2), as to positions and ownership.’ ‘This, of course, was merely hearsay and his evidence should have been supported by the evidence of the witness Antonia to the effect that she had, subsequent to the event, pointed out to the corporal the places where the various incidents, to which she had testified, had taken place.”

R v Gutasi s/o Wamagale (1936) 14 EACA 232

“We note that the statement made by the appellant (Ex.P.1) to Mr. Harwich, Superintendent of Police, was admitted, although the two interpreters who had carried out a double interpretation were not called as witnesses.  Without their evidence this statement was strictly inadmissible since Mr. Harwich could only speak to have taken down what he was told by the second interpreter.”

Waugh v R (1950) AC 203 (PC).

And basically these cases also discuss instances where courts are faced with hearsay evidence and how they treat them. And it would be useful to read those to begin to understand what kind of information, the court is really going to take into account in determining whether a particular piece of evidence is hearsay or not. And essentially that is about the rule, that is you should not go to court to say what you heard another person say to establish the truth of that which you are saying.

There are exceptions to the hearsay rule and actually the exceptions are many more than the rule itself:

1. the first one would be admissions, formal and informal admissions. And these are covered at sections 17-24

2. confessions are another exception to the hearsay rule covered at sections 25-52

3. thirdly, statements made by persons who cannot be called as witnesses are an exception to the hearsay rule. And these are laid out at section 33 of the Evidence Act.

4. evidence given in previous judicial proceedings is also an exception to the hearsay rule. And that is covered at section 34 of the Evidence Act.

5. statements made under special circumstances are also an exception to the hearsay rule. And a number of these are laid out in from section 37 through to 41.

6. statements in documents produced in civil proceedings are also an exception to the hearsay rule. Section 35 and 36

7. Res Gestae is also an exception to the hearsay rule.

8. affidavit statements especially where they are based on information are also an exception to the hearsay rule.

9. statements taken from sick persons who are about to die are also an exception to the hearsay rule. And these are hazards(?) under the Criminal Procedure Code.

10. And also evidence by certificate covered at sections 77 and 78.

We will begin by looking at statements made by persons who cannot be called as witnesses:

Statements by persons who cannot be called as witnesses
Section 33 lays out what those statements might be. It actually has 8 examples of such statements and these are all, in their own right, exceptions to the hearsay rule. And therefore I could not agree more with Lord Reid that the rule against hearsay is technical and absurdly technical.

The opening paragraph at section 33 gives the context within which those exceptions covered at that section apply:

“Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases-“

So it is not all the time that you have, for instance, under section 33 (a) a dying declaration or whatever else, that it is going to be used in evidence. What is detailed at section 33 introduction will have to apply.

So essentially the statement will be admissible if the person make them is dead, cannot be found, has become incapable of giving evidence, their attendance cannot be procured. Or even if it can be procured that would actually occasion expense and delay which in the view of the court is unreasonable. If those circumstances apply then  (a), (b), through to eight would be admitted. Is it clear?

So each of these eight exceptions there is that rider: cannot be found, is dead, the attendance cannot be procured without delay or cannot be procured at all. So if it is alleged that a person is dead, do you think that this statement that a person is dead, is enough? It is not. The fact of the death has to be ascertained.  How do you prove that a person is dead? By a death certificate, the presumption of death, by people who participated in their burial can be called to testify to the fact of death. But essentially the fact of death is a fact that needs to be proved until you have proved that the person is dead through the screening, then you couldn’t actually bring any of these statements  …. And if a person cannot be found the fact of not being found must relate to the time that he is required to give evidence. So you cannot just say that you have not been seeing the person…if no effort has been made to procure them to come and give evidence. So the fact of not being found must relate to time during which you are sought to give evidence.

And the authority for this supposition is the case R v Ndolo (1926) 10 KLR 11.

The court considered the meaning of “cannot be found” in connection with S. 33 India Evidence Act and Section 34 of Kenya Evidence Act where the language is identical.  Here the witness left his place of employment and was not served with a summons for the date of the trial.  The trial was adjourned and assistance from the Registration Department was of no avail, as his movements could not be traced.  It was contended that his deposition should be read.  The defence argued tht has the prosecution taken reasonable steps to discover his whereabouts in preparation for the first date of hearing he would have been available.  The court held that the words “cannot be found” refer to the time when the witness is sought to to attend the trial, and do not refer to the state of affairs at some earlier period.  There was no question as to whether the search had been a diligent one, and the words appear to imply that such a diligent search should be required before the condition is held to have been fulfilled.

And also the case of Thomhill v Thornhill (1965) EA 268 (CA), would be authority for the proposition that the fact of not being found has to be proximate to the time you require the person to give evidence.
What is an unreasonable delay, or unreasonable expense is a matter within the discretion of the court, dependent upon the circumstances of a particular case.
In this case “the learned trial judge also stated in his judgment that the cost and inconvenience of bringing a witness from the United Kingdom would not be great in these days of rapid and inexpensive air travel.  With great respect, I disagree that air travel in these days is inexpensive, although I agree that it is rapid.  But the question seems to be this – is it justifiable legally to put the petitioner to the expense of bringing a witness from the United Kingdom to testify about a fact which is not denied and in respect of whose evidence the court has a discretion to accept on affidavit, particularly as the petition is not defended and no application was made to have the witness orally examined?”

Having satisfied those introductory matters, the first category of statements made by persons who cannot be called as witnesses, are dying declarations. Section 33(a)states:

“when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question and such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question;”

So when the cause of death of a person is in issue and this could be in either civil or criminal proceedings, the statement made by such a person which deals with the circumstances of the cause of the death is going to be relevant. And the case to look at here is the case of Terikabi v Uganda (1975) EA 60. The deceased in this case gave or made a statement giving the cause of his death but no evidence of the circumstances relating to the death. And of course the question was: would this be admissible? Because essentially people are looking at it as being that he has to give both cause and circumstances. So this case was testing whether if a statement gave only cause, would it be admissible? If it gave only circumstances but no cause, would it be admissible? And the court here held that the statement was admissible, that it was not necessary that the statement refer to both the cause and circumstances. Mention of either cause or circumstances was sufficient.

In certain jurisdictions it is required that for a dying declaration to be admissible the person making it must have haven in imminent expectation of death. And the assumption here is that if you are in imminent expectation of death, you are unlikely to tell lies because you are expecting to be going to your maker and you do not want to go tainted by untruth. But of course you know that it fallacious as well because you may be revengeful against a particular person that you do not mind if after you are dead they spend all their lives behind bars, accused of having killed you. In Kenya, however that is not a requirement. So it is not required in this country that for a dying declaration to be admissible one would have to be in imminent expectation f death. And that is actually contained at section 33(a), if you look at the sentence beginning, “such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death..”.

And the case to look at here is a case that we will look at again when we look at confessions. The case of Swami v King-Emperor (1939) 1 All ER 396 (PC). In this case the court considered the admissibility of evidence by a widow that the deceased had told her that he was going to a particular place on the invitation of the appellant’s wife and that the appellant’s wife had asked the deceased to go and receive payment of his dues at that place. So the court was considering whether evidence of a statement by a widow that the deceased had told her he was going to a particular place on the invitation of the appellant’s wife to pick up payment of his dues. And this statement was held to be admissible even though it was made before the cause of death had arisen. So the deceased here was not in imminent expectation of death. But they had made a statement that shed light into the circumstances that led to the death  that he was going to pick up his due.

Again on the same point you should look at the case of Kaluma v R (1968)EAR 349. In this case, three appellants were convicted of the murder of two women in Kenya. The three appellants happened to be wanted by the Uganda police and the two women they were accused of having murdered were part of a search party which had been sent to Kenya to find and arrest the appellants. Evidence was admitted at the trial that one of the two women had made inquiries about the appellants whereabouts and this had been reported to the appellants. This evidence was admitted on the grounds that it was relevant as to the motive or reason for the murder. The appellants were convicted and they appealed challenging the admission of the evidence about the inquiries and the court held that evidence about the inquiries was admissible under section 33 of the Kenya Evidence Act as a statement made by a person who is dead as to the circumstances of the transaction, which resulted in the death. So it was not in the category that would be hearsay and inadmissible. It was an exception to the hearsay rule. So the person was dead and under section 33 (a) a statement made by a person who is dead on the circumstances of their death would be admissible as an exception to the hearsay rule.
So essentially then what would be the requirement under section 33 (a) for admission of a statement as a dying declaration:

1. it has to relate to the cause and or circumstance of the death of the maker and not to any other person. So it has to relate to your death as the maker of the statement, not to the death of other people. And the authority for that preposition is the case of Mohamed Warsama v R.(1956) 23 EACA 576. In this case the deceased had made a series of dying declarations which were precise and detailed and if true conclusive. He had in his declaration also stated the cause of death of another person and the question was whether that part of the dying declaration that identified another person was admissible. And the court held, no,  it was not admissible. The question was whether that part of the dying declaration that pointed to the cause of death of another person was admissible. Remember we said that the deceased made many dying declarations of a precise and detailed and if true conclusive. But in those dying declarations did not just talk about the cause of his own death. He actually talked about the cause of death of another person. And the court was enquiring as to whether that part of the statement that talked about the cause of death of the other person was admissible. And the court held, no. the  dying declaration has to related to the cause and or circumstances of the death of the maker, not of other people. So they would admit what was pertaining to his death, not to the death of other people.

2. The second rule is that the statement must be proximate to the death. So if you had made a statement about your death in the year 2000 and then you die this year, the whole question of the proximity of the statement to your death is going to arise. And the authority here is Antonio v Barugahare v R (1957) EA 149 (CA). The witness here had given evidence that the deceased woman had told her six weeks earlier before she died that the accused had asked her to marry him. So the deceased had confided to the witness, six weeks prior to her death, that the accused had asked her to marry him. The deceased had also asked the deceased according to the report to lend him money to pay his tax. She had refused to yield to either demand. And she was found dead six weeks later. And the question was whether what she had confided to the witness was a dying declaration. Was the information that he had passed to the witness, that she had been asked to marry the accused and lend him money a dying declaration. The court held, not, it was not a dying declaration because the facts alleged were not proximate or related to the death and the circumstances were not those of the transaction resulting in the death. You should compare that holding to the holding of the case R v  Kabateleine s/o Nchwaba (1946) 13 EACA 164. In this case, a complaint made by a deceased person to her headman two days before the house in which she was sleeping was burned, was held directly related to the occasion of the deceased’s death and was a circumstance that resulted in her relevant. Essentially here you are looking at two days and 50. So while six weeks are seen as not proximate, not close enough, here the complaint had been done two days earlier and that is the duration between the complaint and when the death occurred, is what makes the ruling that it is part of the transaction that resulted in death.

3. The dying declaration must be complete. And we should here revisit the case of Beddington. You should also look at the case of Waugh v R (1950) AC 203 (PC). R v Beddington (?), you looked at that when we were looking at res gestae or was it similar facts?   In Waugh’s case, the declaration was held to be inadmissible because it was not complete on its face. The deceased in this case fell in a terminal comma when he was making the statement leaving it incomplete. So basically what the court is saying is that you don’t know what the person might have said if they had had the opportunity to complete the statement, and for that reason, being incomplete, then you could not say it is a statement that should be admitted. The same point is made in the case of R V. Charles Daki s/o Daki (1960) EAR 34. The deceased was in this case admitted into hospital suffering from gun shot wounds. When he was 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 went to the garage with him.” At this point the doctor intervened and the deceased died subsequently. Daki was charged and convicted on the basis of the statement, despite his counsel’s objection. On appeal the statement was held inadmissible on the grounds that the deceased might or might not have added something… And essentially because this statement was not complete, on appeal it was held that this statement could not be used as basis of conviction because for a dying declaration to be admissible it had to be a complete statement. For example, if he had stopped at,”Charles Daki killed me. He shot me with a gun.” And then he did not express willingness or desire to say other things. Basically he had gone on to say—he was now going off on a tangent. What was he going to say when he said a friend visited him, we went to the garage? May be the friend started quarreling with Charles Daki…nobody knows what this person wanted to say… which means the statement was incomplete because you don’t know what he might have said if he had not expired at that point. Let us also look at the case of Pius Jasunga s/o Akumu v R (1954) 21 EACA 331. In this case, a witness who was an assistant police inspector gave evidence that he saw the deceased lying on the road with a wound in his chest. When asked who had injured him the deceased replied, ‘Pius Jasunga had stabbed me’. Later at the hospital, the deceased made a statement to the superintendent of police during the cause of which he got weaker and weaker and he was unable to sign the statement. There was no corroboration of this story and it had been made in the absence of the accused by a man who was suffering from a terrible wound, from which he died subsequently. And the court here held that even though as a rule of law it is not required that a dying declaration should be corroborated, as a matter of practice you should not convict on uncorroborated dying declaration, even though as a matter of law there is no requirement that there be corroboration or independent credible evidence fortifying a particular statement, and in this case a dying declaration. There is no requirement of law. But here one of the points they noted was that as a matter of practice the court should always require corroboration. And they said that the weight of a dying declaration that is made in circumstances suggesting that the person might have said something more, must be less than the one that is fully made.  A dying declaration that is made in circumstances that suggest that the person may have said other things but he was prevented from saying those other things because he expired, the weight attached to that dying declaration must essentially be less than one that appears to be complete. And over and above that the principle that even though law will not require you to corroborate a dying declaration, as a matter of practice the court should always require that such be corroborated. And that is going to be the final requirement of a dying declaration. A dying declaration requires corroboration as a matter of practice. When you look at rules on corroboration, you will see that the law on evidence requiring corroboration is generally divided into two. There are those circumstances where the law actually requires that you get corroboration. Like when you have evidence of children of tender years. There are a number of cases where the law requires that—I think evidence of the complainant in rape case is required by law to be corroborated. But over and above that, courts in exercising caution—and again being guided by the need to be fair to the accused person—have devised instances where even though the law does not require corroboration they will ordinarily require corroboration. And a good example is where you have a dying declaration. That a dying declaration should not form the basis of conviction if it is not corroborated and corroboration here is talking to bringing in credible, independent, strong evidence to fortify that which is being state in the evidence requiring corroboration. It is also required for confessions that are repudiated or retracted, where a person has made a confession and they later say that either they never made it or that they only made it because they were tortured or they were coerced into making it. That kind of confession, even should the court the court decide to admit it, it will ordinarily as a matter of practice required that it be corroborated.

Statements made in the ordinary course of business

The second category of statements under section 33 are statements made in the ordinary course of business.
Section 33(b) states:

“when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him, or of the date of a letter or other document usually dated, written or signed by him.”

So for a statement to satisfy the requirements of 33(b) it has to be a statement being in the ordinary course of business. And section 33 (b) gives examples of those to include entries or memorandum in books or records, and these have to be regularly kept. For instance, books of account, ledgers, journals. It could also be acknowledgements that are written and signed for the receipt of money, receipt books, or documents used in commerce. These would be admissible as an exception to the hearsay rule. And the assumption here is that the person making them has no motivation to falsify them. They are kept in the ordinary course of business; they would actually be entered. But remember in the case of Myers v the DPP what seems to have been record that were kept in the ordinary cause of business were actually ruled to be hearsay because the person making them did not actually come to testify to them. And this is again to talk to the introductory part of section 33, that it has to be that the person is dead, cannot be found, is incapable of giving evidence, cannot be procured or even they can be procured it will be as a consequence of delay and expense which is unreasonable. So in Myers v the DPP it was not established that a person had died, or could not be found. So essentially for this book to be admissible it is not for all time. The exception comes in because what is contained at the introduction at section 33 is already applicable, that there is a problem in getting this person here because they are dead, etc.

And the cases to look at there are

Commissioner of Customs v SK Panachand (1961) EA 303 (CA)

The company imported some blankets allegedly from West Germany, No import licence was required for goods from West Germany, although a licence was required for goods from other countries.  The Customs seized the blankets acting on information that they, in fact, had come from East Germany.  The company, seeking the return of the blankets, in order to support its case produced two documents, an invoice, and a document signed by a Mr. Blok in which it was stated that the invoice, on which appeared the words “Country of Origin – West Germany”, was correct.  The Company claimed that these documents satisfied the burden placed upon the Customs Acts, i.e. to prove the country of origin of the blankets.

The decision involved S. 33 of Evidence Act covering cases where the attendance of a witness cannot be procured without unreasonable delay and expense, subs. (b) dealing with statements or documents made in the ordinary course of business.  The main issue was whether the invoice and document signed by Mr. Blok were admissible in evidence to prove country of origin.

The court held basically that the “any person” who will “give evidence of any other fact” in this case, as set forth in S. 110 I.E.A was Mr. Blok, who by means of his signed document would give evidence of the “other fact”, i.e. that the blankets came from West Germany. Before Mr. Blok could “give evidence through the media of the documents, S. 110 placed the burden upon the Company of proving:
(a) that Mr. Blok’s attendance at the trial could not be procured without unreasonable delay of expense,
(b) that Mr. Blok’s signed document was used in the course of business, and
(c) that the document was actually signed by Mr. Blok, the person whose attendance it was unreasonable to procure.
Since the Company had failed to meet its burden of proving these conditions precedent to the admission of the documents they were held not admissible in evidence and the court ordered condemnation of the blankets.

You should also look at the case of R v Masalu (1967) EA 355 (T).

You should also look at Gichunge v R (1972) EA 546.

And all these cases would be illustrating what might be statements made in the ordinary course of business. The cases of Masalu and Gichunge are particularly interesting because they deal with post-mortem reports and would seem to indicate that fact report can technically be admitted as a statement made in the ordinary course of business if they constitute a statement of fact, rather than a statement of one’s opinion, when you are talking about the cause of death, when you are talking about either a statement of fact rather than an expression of opinion, that would be admissible.
You should also look at the case of R v Magandazi and four Others (1967) EA 84 (CA), which would also talk to documents made in the ordinary cause of business.
The accused were employed in Uganda to carry loads to the Congo.  On a charge of theft of a portion of the loads by the accused, a letter from an agent of the complainant’s firm resident in the Congo was placed in evidence, but the writer was not called.  The Court said:
“… a letter was produced … by the same witness purporting to come from the agency of the complainant’s firm in the Congo and showing shortages in the goods received.  (Section 30(2) quoted).  The provision of the Section should in my opinion be only sparingly applied and rarely, if ever, be used where the statement goes to the root of the whole matter before the Court, as in the present case.  Further the letter, although it may be said to have been written in the ordinary course of business to report a loss, appears also to be in the nature of a special letter written with a view to the present prosecution.”  The letter was not admitted.
Another case might the case of  Idi bin Ramadhan v R (1914) 2 ULR 108.
The statement of a police constable was put in evidence during the course of the trial after it had been proved that the constable in question had proceeded on leave.  Presumably the statement purported to be put in evidence under s. 32(2) of the Evidence Decree.  GRAY C.J. quoted from Magandazi’s case and from Ningawa v. Bharmappa “I think in using the phrase ‘in the ordinary course of business’ the legislature intended to admit statements similar to those, admitted in England, as coming under the same description.  The subject is clearly dealt with in Chapter XII of Mr. Pitt Taylor’s Treatise on the Law of Evidence, and the case(s) which he has collected show that this execution to the general rule against hearsay tends only to statements made during the course, not of any particular transaction of an exceptional kind such as the execution of a deed or mortgage, but of business, or professional employment in which the declarant was ordinarily or habitually engaged.  The phrase was apparently used to indicate the current routine of business which was usually followed by the person whose declaration it is sought to introduce.”

Statements against the interests of the maker

The next category of statements admissible under section 33 are statements against the interests of the maker.

Statements against the interests of the maker

Section 33 (c )  reads:

“When a statement against the pecuniary or proprietary interests of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages;”

So essentially a statement which is against the interests of the maker would be admissible as an exception to the hearsay rule. But remember against the introductory part of section 33 has to apply before you admit that it makes an exception to the hearsay rule. And over and above that you have to look at: Is it really against the interests of the maker? And the interests of the maker might be pecuniary or relating to money, proprietary where it affects property or the ownership of the property of the maker, or it could also be one that exposes a person to a claim for damages or to prosecution. And the rationale here is that in the ordinary course of life a person is not going to make a statement against their own interests and would only make such a statement if it is true.

 Case to look at is the case of Marie Ayoub v Standard Bank of SA (1961) EA 743 (CA).And the statement here was made by the deceased. There was a statement in a letter where the deceased was said to be owed for the running of his estate. A statement in a letter in which it was said that the plaintiff were indebted to the deceased for the running expenses of an estate. The question arose as to whether the statement would be an exception to the hearsay rule under section 33(c ) and it was held not admissible because the maker was not dead. The person who had made the statement saying they were indebted to the deceased for the running of the estate was not dead. So the prerequisite for the operation of section 33 (c ) had not been satisfied.

The other case you could look at is the case of Dias v R (1927) 3 Uganda Law Reports 214, where the accused was charged with the offense of falsifying books of account and the prosecution relied on a letter written by a deceased clerk to the head of the department which charged the accused with having ordered him to make the false entries. So the question was, could such a statement be admitted under section 33 (c ) as one against the interests of the maker. Who was maker of the statement here? The deceased clerk. And who was the accused?  He was not the deceased. So the court here held this statement was not proper one for section 33 (c ) equivalent to Uganda, that it could not be admitted as an exception to the hearsay rule because it was in the very interest of the deceased clerk to make that statement so that he could pin responsibility on the other person rather than on himself. So it was not actually a statement against the interests of the maker because the maker was charging another person with falsifying the books and therefore it was not the right statement for the application of this exception.

The next exception at section 33 is statements expressing opinion as to a public right or custom. And remember again it is when the maker of the statement would be dead, cannot be found and all those things that are contained in the introductory. So statements made by persons who cannot be called as witnesses are admissible if they give an opinion on the existence of custom and for such to be admissible the people ought to be a person that might be aware of such right or custom and the statement should been made before any controversy as to the right of custom arose. So you could not make a statement to suit your claim in a forthcoming suit. The statement ought to have been an unguarded statement of opinion on a public right or custom and it ought to have been made before there was any controversy as to that public right or custom.  So you made the statement just before the institution of the suit, then that is not going to be admitted because you would have tailored it for that specific—and when we talk about a public right it is one which is held in common by all members of the public. For instance, when people are talking about a right of way in the form of a highway, people who would have know that right of way was there, a public right of way was there and it has to be one that affects a considerable portion of the community. For instance also when you talk about the boundary of a village. And remember that for it to be admissible as an exception to the hearsay over and above it having been made before there was a controversy, the person ought to be a person who can be considered as having competent knowledge, person likely to know.

Statements that relate to any relationship

The next exception is at subsection (e), which reads:

“When the statement relates to the existence of any relationship by blood, marriage, or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;”

So essentially state of persons who cannot be called as witnesses will be admissible when they relate to the existence of any relationship. And the relationship could be a relationship by blood, by marriage or by adoption. And the person making the statement ought to have been a person who would have had special means of knowledge of the existence of that relationship. So it is not just any person. It is a person who had special means of knowledge. And remember again it is only in instances where that person cannot be called as a witness because of the variety of factors, that they are dead, cannot be found, etc.  And the statement must also have been made before there was a dispute as to the existence of the relationship or not. So there ought to have been an unguarded action.

And the case to look at here is the case of Seif Ali Bajkni and others v Hamed Bin Ali (1945) 7 Zanzibar LR 13. This involved a situation where a child was born 10 months after the marriage between the parents was dissolved. During the hearing it was sought to introduce a document concerning the relationship, written by the alleged father. The document was written in contemplation of the suit because the father disputed the parenthood and they made the document in the event that the child should ever file suit. If the child files suit against the father then the father would turn around and say there is a problem here, I do not accept that you are my son. So the document was written in contemplation of the suit because the father disputed his fatherhood of the child and the document contemplated a situation where the child might file any suit against the father.  And the court held that the document conclusively proved the existence of the controversy and it should be rejected. Because remember we said that the document ought to have be an unguarded assertion. It should not be one done in contemplation of a suit. The document itself conclusively proved the existence of the controversy at the time it is alleged to have been written because the father only wrote the document because they disputed their parenthood of the child. And they were writing it to guard themselves in the event that this child should ever fight it against the father. And so it should be rejected because the document ought to have been made when there was no dispute as to the existence of the relationship but you see here the father was dead but he had written the document. But he had only written the document for the purposes of establishing certain matters.


Statement relating to family affairs

The next exception is at (f), statements relating to family affairs. Those will also be admissible and these ought to be made by persons who would have knowledge, again. And they could also be on tombstones, family portraits, or other places where such statement should be made. It could also be in a will or a deed. So if you have a statement relating to family affairs in any of those places and it is made by a person who cannot be called as a witness, it would be accepted as an exception to the hearsay rule. And the assumption here is that there will be nobody inserting falsities in those kinds of places, where you are talking of a tombstone, a family portrait or a will or a deed. Those are solemn documents, so if you have those kinds of statements made by person who cannot be called as witnesses, there will be admissible.

Statements made by persons who cannot be called

Then at section 33 (g) where you have statements made by persons who cannot be called, which are contained in a deed or other transaction that establish a custom, those will be admitted. When a statement is contained in any deed or other documents which related to any such transaction as mentioned in section 13 (a). 13 (a) gave the establishment of customs or rights. Those would be admissible. And again here you are talking about statements that show when the custom or the right was created, when it was claimed, where it was modified, instances when it was recognized, or when it was asserted or denied. All these could be admissible if they are made by a person who cannot be called as a witness. And this provision includes private as well as public rights. So it is not just for public rights. It is also for private rights.

Statements made by several persons expressing feelings or impressions

And finally under section 33, statements made by several persons expressing feelings or impressions on their part, which are relevant to the issue in question. So if a number of people who cannot be called as witnesses had made statements expressing their feeling or impressions  which feelings or impressions are relevant to the matter in question, that is going to be admissible. For instance, if you have a number of people saying they were apprehensive, they had made statements to the effect that they were apprehensive that something was happening or that they got the impression that things were not being done in the way they should have been done. And again here of essence to admissibility is that they made them as unguarded statements. They are not tailor made for a specific procedure.