Introduction
Part I
HEARSAY EVIDENCE
Statement 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 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 is not hearsay and is admissible.
The Evidence Act does not provide for hearsay evidence, it is a judicial term which is used by magistrates and judges. Section 62(1) provides against the hearsay evidence in that oral evidence must be direct.
Reasons for not admitting Hearsay Evidence
- Is not given under oath
- No opportunity of cross-examination thus you cannot test the credibility of witness
- It pre-suppose that there is a better evidence somewhere
- It has the tendency to prolong litigation
- The assessors (judges of facts) are confused when hearsay evidence is introduced especially when it came to weigh evidence
- It is intrinsically weak because it is subject to distortion, human memory tend to fade with passage of time and errors of transmission
The inadmissibility of hearsay evidence was held in the case of Kilongo v. R. (1958) E.A.C.A. 152, where the accused had retained poll-tax money and then, fearing prosecution had handed it over to one Mwinyipembe to take to Wakili Mzee refused to accept the money, the accused handed Mwinyipembe more money telling to go back to Mzee and offer this to him so that Mzee would refrain from reporting the matter. Mzee gave evidence as to what had occurred and had been said to him. The appeal court held: “The when Mzee deposed to Mwinyipembe’s coming to him with the sh. 500/-and latte with sh. 1000/-. It was not hearsay evidence, but we think that it was hearsay when he deposed to what Mwinyipembe had told him the accused had told Mwinyipembe to say to him (Mzee).”
In Haji Ibrahim v. R. (1975) L.R.T.N. 56 the court said that the testimony of a police witness about information supplied by third party who is not called as a witness is hearsays and inadmissible.
Exception to the Hearsay rule
Under section 34 oral or written statements of relevant facts made by person:
- Who is dead
- Who cannot be found
- Who has become incapable of giving evidence,
- When it relates to the cause of his death
- When it is made in the course of business, such as an entry in books, or acknowledgment or the receipt of any property or date of a document
- When it is against the pecuniary or proprietary interest of the person making it or when it would have exposed him to a criminal prosecution or to a suit for damages
- When it gives opinion as to a public right or custom or matters of general custom had arisen
- When it relates to the existence of any relationship between persons as to whose relationship the maker had special means of knowledge and it was made before the question in dispute arose.
- When it relates to the existence of any relationship between person deceased and is made in any will or deed or family pedigree, or upon any tombstone or family portrait and was made before the question in dispute arose
- When it is contained in any deed, will or other document
- When it is made by a number of persons and expresses feelings relevant to the matter in question.
Dying declaration
According to section 34(a) statement of a person who dies, whether the death is homicide or suicide provided it relate to the cause of death is admissible. The condition for the admissibility of such statement is that:
- The maker of the statement must be dead. If the person making the statement chances to live, his statement is inadmissible as a dying declaration.
- The statement must relate to the cause of death and circumstances of transaction which resulted to his/her death.
- The cause of death of that person must be an issue in a case.
Difference between Dying Declaration under Tanzania Evidence Act and English Law (Commonwealth)
Under the Common Law, dying declarations are only admissible in cases of murder and manslaughter, under The Evidence Act dying declarations extends to civil cases in which the cause of death of the person who made the statement comes into question.
Under the Common Law at the time of making the statement the maker must be in a state of actual expectation of death while The Evidence Act provides that a statement is relevant when made by a person as to the cause of his death and it provides further that such statements are relevant whether or not they were made under expectation of death. In the case of R. v. Muyovya bin Msuma (1939) 6 E.A.C.A 128, the court convicted the appellant without giving direction to the assessors on caution with which dying statements should be received. On appeal the court said:
“This caution is even more necessary in this country (Tanganyika) where such statements do not depend for their admissibility as they do in England, on their solemnity because of the declarant having a settled belief that he is about to die and what is stated being the equivalent of an oath. The weight to be attached to such statements in this country must consequently be less than that attached in England.”
The Cause of Death
It is required that dying declaration must relate to the cause of death of the maker (declarant) and not the cause of another’s death. When the victim is not proved to have died as a result of the injuries received in the incident his dying declaration cannot be said to be the statement as to the cause of his death or to any of the circumstances which resulted in his death. In the case of R. v. Abedi bin Kasanga (1938) 5 E.A.C.A 120 the appellant was charged with murdering Sowedi. Bushiri in a dying declaration stated that he (Bushiri) had been instigated by the appellant to shoot Ali and had in fact shoot Sowedi. Mistaking him for Ali. This was held to be inadmissible. R. v. Kayanda alias Msila s/o Mkuyu and Others (1943) 10 E.A.C.A. 117, a dying declaration by one Rubogi who was in fact murdered on the same occasion as Mfanye for whose murder the appellants had been charged, though the two murders were not made the subject of a single information, was held to be inadmissible since it was not Rubogi’s death which was in question.
Circumstances of Transaction
Dying declaration may be admissible if they are made as to any circumstances which resulted in the deceased’s death. In the case of Swami v. Emperor [1939] 1 All E.R. 396, the court extended the suggestion that the statement must be made after the transaction has taken place, that the person making it must be at any rate near death, that the circumstances can only include the acts done when and where the death was caused. Thus the statement may be made before the cause of death has arisen or before the deceased has any reason to anticipate being killed.
In the case of Kabateleine s/o Nchwamba (1946) 13 E.A.C.A 164 the appellant was convicted of the murder of his mother by setting fire to the hut in which she was sleeping at night. The evidence against him was entirely circumstantial and consisted inter alia of a complaint made by the deceased to a headman two days before the fire the appellant was threatening to burn her hut because he said she had caused the death of his father by witchcraft. The appeal court held that the complaint made to the headman two days before the fire was admissible in evidence under section 32(1) Indian Evidence Act (34(a) Tanzania Evidence Act as it was directly related to the occasion of the deceased’s death and was a circumstance which resulted in her death.
In Swami’s case the court said that the circumstances must be circumstances of the transaction, general expression indicating fear or suspicion whether of a particular individual or otherwise and not directly related to the occasion of the death will not be admissible. In the case of Antonio Barugahare and Others v. R [1957] E.A. 149, the only point in the appeal was the admissibility of certain evidence by a friend of the deceased woman. The witness gave evidence that the deceased had told her some week before her death that the first defendant had asked her to marry him and to lend
him some money to pay his poll tax. The appeal court held that the admission of such statement by the trial court was irregular. It further stated that:
“The statements of the deceased indicating motive would have been rightly admitted if made after the attack, and perhaps even if made in clear reference to an imminently expected attack which later took place; but we think that in the present circumstances they were neither statements as to the cause of death nor as to the circumstances of transaction which resulted in the death. In one sense a murder may be said to result from a long- nurtured grudge, and the source of the grudge may be said to be a transaction which itself results in the death; but we emphasis the requirements laid down by the Privy Coucil that there must be ‘some proximate relation to the actual occurrence.’ Whether or not facts here alleged bear a relation to the murder, there was certainly no proximate relation.”
Thus we see that circumstances must have some proximate relation to the actual occurrence, though as for instance in a case of prolonged poisoning they may be related to the dates of the actual fatal dose.
Manner of eliciting the Statement
In the case of Pius Jasunga s/o Akum v. R (1954) 21 E.A.C.A. 331, among other issues raised on appeal was the admissibility of dying declaration taken by asking leading questions. The court said that this does not make the statement inadmissible, but it will affect the weight to be given to it. In R. v. Mitchell (1892) 17 Cox 503, the court said that declaration must be in the actual words of the deceased and that if questions had been put, both questions and the answers must be given; furthermore since questions might be leading ones, there always a very great danger of each question being answered without their force and effect being full comprehended.
Incomplete Statements
Incomplete statements are not admissible. In the case of Cyril Waugh v. R. [1950] A.C 203, the deceased fell into a coma while making the statement and never recovered. The court held that:
“The dying declaration was inadmissible because on its face was incomplete and no one can tell what the deceased was about to add; that it was in any event a serious error to admit it in part, and that it was further and even more serious error not to point to the jury that it had not been subjected to cross-examination.”
In the case of R. v. Charles Daki [1960] E.A. 34 the deceased was interrupted by the doctor when he was making his statement to the police officer, whereas later he died without completing his statement. The court held that—on the face of the recorded statement and footnote there to the deceased was interrupted by the doctor; the deceased might or might not have added something. Thus the statement was held to be inadmissible. In the case of Pius Jasunga the deceased did not sign his statement and thus the court said that since the statement was unacknowledged it was inadmissible. “The statement was unacknowledged and there was no means of knowing whether the deceased would have acknowledged its correctness or would have wished to alter or add to it had he been able to do so.”
In order to test the reliability of a dying declaration, the court has to keep in view the circumstances like the opportunity which a person on the point of death had for observation, whether his capacity to remember the facts stated by him had not been impaired at the time he was making the statement that the statement was made at the earliest opportunity. The weight to be attached to a dying declaration will depend on a number of circumstances. It is very important to determine whether or not the declarant was really certain of his assailant. In the case of Mdiu alias Mnyambwa Mande v. R [1965] E.A. 193 the deceased had in a dying declaration said to the appellant “Why are you killing me?” and when the accusations had been denied, he asked “if you did not kill me, let us shake hands.” They had then shaken hands and the deceased had then said “if you did not kill me, God knows.” The appeal court said:
“Could not exclude the possibility that up to the moment that the deceased died there was a certain amount of doubt lingering in her mind. It would also appear that those who were present and heard the declaration were not entirely convinced by it, because before the arrival of the police no one made any attempt, as is usual in these circumstances, to arrest the appellant…the attack took place at night in a room lit by a feeble light and, in our view, where the identification of the assailant was a narrow issue between the prosecution and the appellant, a particular caution must be exercised and the evidence of the prosecution must be so cogent as to exclude any possibility of a doubt.”
The weight to be accorded to a dying statement must also depend to a great extent, upon the circumstances in which it is given. In the case of Pius Jasunga, the deceased was suffering from a terrible head wound when he made the statement was (according to hospital employee who was present at the time) very unconscious. He made the statement with difficult though apparently his mind was clear. Although he spoke strongly at first he get weaker and was unable to sign the statement. The unsatisfactory nature of the statement was held to be inadmissible because the effects of wound may dim the memory or weaken or confuse the intellectual powers.
Corroboration
Since the weight to be attached to a dying declaration under Tanzania Evidence Act is less than that in England, evidence of such declarations falls into the class of testimony for the acceptance of which corroboration is highly desirable. Yet it is not to say that corroboration is always necessary to support conviction. Corroboration would not always be necessary if the dying declaration is complete in its accusation and there is nothing to show that the maker of the statement had anything further to add. In the case of Eligu s/o Odel and Epong s/o Ewunyu (1943) 10 E.A.C.A 90, the deceased had stated in his dying declaration that the two accused had attacked him. The deceased came along a road near the second accused and was singing. This annoyed the second accused, who bound the deceased with a rope and later after unbinding him, beat him to death with a stick. The principal evidence against the accused was contained in a certain statement made before his death by the deceased to four different people as to what happened and who assaulted him.
In the case of the first accused the deceased’s statement receives corroboration in the evidence that prior to his death the accused’s stick had been taken from him by the second accused and was found near the place of the first accused’s house where the deceased met his death.
As regard second accused, he was associated with the first accused in arresting the deceased earlier in the evening of his death for the trivial act of singing. It was held that whilst corroboration of a statement as to the cause of death made before his death by the deceased is desirable it is not always necessary in order to support a conviction. To say so would be to place such evidence on the same plane as accomplice evidence and would be incorrect. The court said:
“ In quoting this evidence our object is to show that the earlier happenings of the evening the second accused was associated with the first accused in such a way as to point to the second accused being the second assailant when the deceased was later attacked by two men. 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 point that the deceased in his identification of his assailants would be less likely to be mistaken than if he had 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 in circumstances we have set out earlier in the same evening, this fact making the deceased’s statement more credible.”
Apart from exceptional cases where the statement of the deceased was admitted without corroboration, courts have from time to time insisted on the need of corroboration as was said in the case of Pius Jasunga:
“we have examined the decisions of this court on the subject of dying declarations since 1935 and we have been unable to find a single case where conviction has been upheld which was based upon a dying declaration without satisfactory corroboration unless in Epungu’s case there was evidence of circumstances going to show that the deceased could not have been mistaken in his identification of the accused.”
Sometimes corroboration may be circumstantial, as was in the case of R. v. Said s/o Abdalla alias Said s/o Mangombe. In this case a witness had seen the deceased being pursued by a man who she could not identify carrying a panga. The deceased named the appellant as his assailant. Corroboration was held to lie in the fact that earlier in the day the deceased and the appellant had a dispute over the ownership of a sheet and had been seen going off together in the direction of the place where the deceased’s body was found, the appellant carrying a panga, a bottle and the sheet and was wearing a cap. Later he was seen without the cap, bottle or sheet, wet with sweat and with his eyes red.
Where a dying declaration is made in the presence of the accused, corroboration of a dying declaration may be found in the accused’s conduct at the time. In the case of Mibinga v. Uganda [1965] E.A. 71, the trial court found corroboration in the accused’s conduct in the fact that on the first occasion when the deceased accused Mibinga in his presence of being his assailant, the later remained silent.
