THE LAW ON HEARSAY EVIDENCE IN TANZANIA

THE LAW ON HEARSAY EVIDENCE IN TANZANIA

Hearsay evidence can be defined as third person's assertions narrated to a court by a witness for the purpose of establishing the truth of that which he asserts.  Sections 62 of the Evidence Act provide the general rule on the admissibility of hearsay evidence. Section 62provides that oral evidence must in all cases be direct. Whatever that is not direct is hearsay and therefore not admissible as direct evidence is the best evidence.

Hearsay evidence has a number of characteristics; i.e.

1.   It is a statement, verbal or written

2.   That statement is made by a person who is not before the court.

3.   That statement is introduced for the purpose of establishing its truth.

In Subraminium V Public Prosecutor, it was held that hearsay evidence is an assertion of a person other than the witness testifying offered as evidence of the truth of that assertion rather tan as evidence of the fact that the assertion was made.

 The rule is that a statement given in proceedings about something other than that by the person who directly perceived it is inadmissible. The rule against hearsay is thus exclusionary in the sense that it excludes hearsay evidence in the course of proceedings. 

See R V Gibson

See Sparks V R

Exceptions to the rule against hearsay evidence.

Section 34 of the Evidence Act provides exceptions to the rule against hearsay evidence;

1.   Statements written or verbal of relevant facts made by a person who is dead or who cannot be found or who ahs become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to be unreasonable, yet relevant to cases falling under section 30.

See Muhamad Taki V R

See Thornhill V Thornhill

See Commissioner for customs and excise V Panachand

2.   Dying declarations.

When a statement is made by person as a cause of his or her death or as any of the circumstances of the transaction which resulted into his or her death, in cases in which the cause of death of that person come into question and the statements are relevant whether the person who made them was or was not at the time when they were made under the expectation of death and whatever may be the nature of the proceeding which the cause of his or her death comes into question, it is admitted as evidence of the truth of that statement.

A dying declaration therefore is a statement n uttered by a since deceased person the purpose of which is to establish the cause of death of that person. Ordinarily, this would amount to hearsay because the maker is dead and therefore not in court.

See Sabiiti Vicent V Uganda.

For a dying declaration to be valid key issues must be established;

a)   If the person who makes were to be present, he could be a legible witness in court

b)  Someone of testimonial capacity.

    See R V Pike

Other issues that determine whether a statement is a dying declaration or not include;

i)                 The maker must have died

ii)             The statement should be complete. The deceased must have said all he wanted to say about the circumstances of death or its cause.

See Waugh V R

See Charles Daki V R

iii)          It should be a fee expression of the deceased. He should not have answered in reaction to questions but must have made the statement voluntarily. If the statement is recorded, the actual words should be adduced to court and not juts an interpretation of the words.

iv)           The need for corroboration. 

See Uganda V Alfred Oyaka

See Uganda V Rutaro

See Kalsiti Sebugwawo V Uganda

v)              The issue of time.

See R V Kabatereine

See Barugahare V R  

3.   Statements made in ordinary business.

According to section 34(b), when the statement was made by such a person in the ordinary course of business and in particular when it consists of any sentry or memorandum made by him or her in books kept in the ordinary course of business or in the discharge of professional duty or on acknowledgment written or signed by him or her of the receipt of money, whose securities or propriety of any kind or of a document used in commerce written or signed by him or her or of the  date of a letter or other document usually dated, written or signed by him or her. For a statement to qualify under this exception the following have to be fulfilled;

a)   the statement must have been made before the controversy arose

b)  Records must be made by someone who is under duty to make them.    

4.   Statements against pecuniary or primary interests of the maker.

Section 34(c) of the Evidence Act stipulates that when the statement is against the pecuniary or proprietary interests of a person making it, or when it could expose him/her or would have exposed him or her for a criminal prosecution or to a suit for damages, then it is admissible, despite it being hearsay. .

See R V O'Brian

See Dias V R

5.   Public rights and records.

Section 34(d) of the Evidence Act provides for the admissibility of statements which give the opinion as to the existence of any public right or custom, or matter of public or general interest of the existence of which if it existed, the giver would have been likely to be aware and when that statement was made before any controversy to the right, custom or matter had arisen.  

6.   Pedigree relations.

Per section 34(e) of the Evidence Act, 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.  

7.   Private rights and family affairs.

Section 34(f) of the Evidence Act provides that when a statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged to in any family pedigree or upon any tombstone family portrait or other thing on which such statements are usually made and when the statement was made before the question in dispute was raised, then they are admissible under the Evidence Act.

See Haines V Guthrie

8.   Per section 34(g) of the Evidence Act, when a statement is contained in a will or deed or other document which relates to any such transaction as is mentioned in section 12 the truth of that statement can be proved by hearsay evidence.

9.   According to section 34(h), when a statement was made by a number of persons and expressed feelings or impressions of or on their part relevant to the matter in question, then they are admissible under the exceptions to the hearsay rule.